Carolyne Willow v The Information Commissioner Ministry of Justice
| Jurisdiction | England & Wales |
| Judge | Sir Brian Leveson P,Lord Justice McCombe,Lord Justice Newey |
| Judgment Date | 22 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1876 |
| Docket Number | Case No: C3/2016/2391 |
| Date | 22 November 2017 |
| Court | Court of Appeal (Civil Division) |
[2017] EWCA Civ 1876
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge Kate Markus Q.C.
GIA/428/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice McCombe
and
Lord Justice Newey
Case No: C3/2016/2391
Ian Wise Q.C. and Michael Armitage for the Appellant
Gerry Facenna Q.C & Laura Elizabeth John (instructed by Richard Bailey, Solicitor, Information Commissioner's Office) for the First Respondent
Oliver Sanders Q.C. (instructed by The Treasury Solicitor) for the Second Respondent
Hearing date: 1 November 2017
This is an appeal from a decision of the Upper Tribunal, Administrative Appeals Chamber (Upper Tribunal Judge Kate Markus Q.C.) ('UT'), dated 24 March 2016, dismissing the appeal of Carolyne Willow against the decision of the First Tier Tribunal ('FTT') dated 30 November 2014 which itself rejected an appeal from the Information Commissioner. UTJ Markus concluded that the FTT had neither erred in their application of the law, nor acted irrationally and that the decision was adequately reasoned. She refused permission to appeal which was subsequently granted by Arden LJ on the basis that the case raised an important point of principle or practice or that there was some other compelling ground for what is, in fact, a third (or, counting the Information Commissioner, a fourth) tier appeal to be heard.
The appeal concerns the disclosure by the Ministry of Justice ('MoJ'), pursuant to the provisions of the Freedom of Information Act 2000 (' FOIA'), of a full, un-redacted, copy of the Minimising and Managing Physical Restraint training manual ('MMPR') which, as its name makes clear, is directed to training relevant staff in the mechanisms whereby children and young persons in custody may be restrained if circumstances require it.
Background
Ms Willow is a qualified social worker with considerable experience in advancing and protecting children's rights. Much of her work has focused on her concern regarding the use of restraint techniques on children in custody. From 2000 to 2012, she was the National Co-ordinator of the Children's Rights Alliance for England and as such she served on the expert advisory panel to the independent inquiry into the use of physical restraint, solitary confinement and forcible strip searching of children in custody conducted in 2006 by Lord Carlile of Berriew Q.C.
During this period, Ms Willow made a FOI request for full disclosure of the Physical Control in Care restraint manual ('PCC'), which was then used in Secure Training Centres ('STCs') for children under 18. The Youth Justice Board refused disclosure relying on s. 31(1)(f) FOIA. This decision was overridden by the Information Commissioner, who ordered that the PCC be disclosed on the grounds that there was significant public interest in its disclosure, taking into account the level of debate and controversy surrounding the use of physical restraint and the evidence that the techniques could result in physical harm. The PCC was published without, so it is argued, any adverse effect. It is of note, however, that in other proceedings, the Use of Force Manual (for Young Offender Institutions above the age of 17 and adult prisons) was considered to have been properly withheld from disclosure.
Thereafter, in July 2012, a further training manual was produced (the MMPR). It followed an independent review of restraint procedures in secure settings for juveniles, which was conducted following the deaths of two children in STCs during or following physical restraint. It is used in STCs (which accommodate children and young persons aged between 12 and 17 years of age) and juvenile Young Offender Institutions ('YOIs') (accommodating those between 15 and 17 years). No doubt encouraged by the decision in relation to PCC, on 12 July 2012, a further FOI request was made under the same legislation requesting a "a full copy – without any redactions" of the MMPR.
This was because the publicly available copy of the MMPR contained extensive redactions; to provide context, it must be made clear (as the FTT explain) that the online (redacted) version is 154 pages in length with redactions occurring on approximately 65 pages. The critical redactions essentially relate to aspects of the 12 core techniques for restraining, searching and disarming children and young persons with instructions on their application in different situations both with and without the use of ratchet handcuffs: each is to be used only as a last resort where it represents a necessary, proportionate, appropriate and ethical means of preventing injury to individuals or serious damage to property. Three involve potential pain compliance.
The redactions of which complaint is made do not prevent the techniques being identified but withhold precise details of the training instructions governing the way that ten are applied in practice; each of these ten is overtly marked and annotated with a gist of the redacted information, indicating the nature of the information which has been removed. By way of example, in the redacted version of the MMPR, the explanation of the technique involved in what is described as 'inverted wrist hold – thumb only' has been removed and replaced with the following:
"This sentence has been redacted. It describes how members of staff will take hold and control the young person's arm, hand, and thumb without applying undue pressure or pain when employing the inverted wrist hold."
On 6 August 2012, the MoJ responded to the request by identifying the means of accessing the redacted copy of the MMPR. It was explained that the un-redacted version was a 'restricted document' engaging the exceptions under s. 31(1)(f) (good order) and s. 38(1)(a),(b) (health and safety) of FOIA. In its letter, the MoJ provided a full explanation of the arguments for and against disclosure, but:
"… considered on balance, the likely threat to the good order and security of YOIs and prisons and the safety implications of this for young people and staff in both YOIs and prisons favours non-disclosure of the un-redacted version of the MMPR training manual."
A review of the decision was requested but, on 1 March 2013, the MoJ again rejected the application. While acknowledging the arguments advanced, specifically to the effect that there was no evidence that the disclosure of the PCC had led to children in STCs developing countermeasures, it distinguished between the contents and application of the MMPR and the PCC and underlined that the Information Commissioner had supported the non-disclosure of the Use of Force Manual which operated in YOIs for those over 17 and in adult prisons. Thus, by way of example, the writer of the response made it clear that:
"the MMPR… will also be used in Young Offender Institutions (YOIs), and there are significant differences between YOIs and STC's and the young people detained within them. YOIs accommodate an older group of young people, many of whom demonstrate a much higher level of dangerous and violent behaviour towards both other young people and staff alike. Staff must be able to respond to these situations in a way that supports the maintenance of health and safety of both the young person and others. Furthermore there are similarities between the application of some of the techniques included in MMPR and those included in Control and Restraint (C&R), the restraint system used in adult prisons…
Finally I wanted to address the concerns you raise that the arguments in favour of disclosure made in the response of 6 August do not make specific reference to child protection or children's rights obligations. Those arguments clearly refer to a public interest in ensuring that young people are treated humanely and decently, and that the health and safety of young people is considered in the development and deployment of MMPR… There are also many arguments in favour of non-disclosure that relate to child protection or children's rights obligations. For instance, restraint techniques are often used in order to end a violent assault by one or more young people on another young person. It is therefore essential that staff can be confident in using restraint techniques, and not concerned that in doing so both their health and safety and that of young people may be open to compromise".
Following this refusal, Ms Willow mounted an appeal by way of complaint to the Information Commissioner. Again, the MoJ argued that the disclosure of the techniques in the MMPR could lead to some young people or adults developing countermeasures to their application. These assertions were challenged in the complaint which submitted that the background and educational status of children in YOIs made it unlikely that they would develop countermeasures and emphasised the vulnerability of the young people. Attention was also drawn to the United Nations Convention on the Rights of the Child ('UNCRC') with respect to children in custody and the specific duties of those having custody of them.
Following an inquisitorial investigation (which involved sight of the unredacted MMPR and the provision by the MoJ of other details), the Information Commissioner rejected the complaint and concluded that the information was likely to prejudice the maintenance of security and good order in YOIs, and therefore that s. 31(1)(f) FOIA was engaged. He considered the public interest arguments for and against disclosure and decided that, on balance, the public interest favoured withholding the information. As a result of this conclusion, he did not need to consider s. 38: this latter provision has not subsequently...
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