R AB (by his Mother and Litigation Friend CD) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Burnett of Maldon CJ,Moylan LJ,Singh LJ |
| Judgment Date | 18 January 2019 |
| Neutral Citation | [2019] EWCA Civ 9 |
| Docket Number | Case No: C1/2017/3017 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 January 2019 |
[2019] EWCA Civ 9
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lord Justice Moylan
and
Lord Justice Singh
Case No: C1/2017/3017
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Ouseley
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Dan Squires QC and Ms Ayesha Christie (instructed by The Howard League for Penal Reform) for the Appellant
Mr Tom Weisselberg QC and Ms Sarah Hannett (instructed by the Government Legal Department) for the Respondent and the Interested Party
Ms Caoilfhionn Gallagher QC and Mr Adam Wagner (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing dates: 7–8 November 2018
Approved Judgment
Lord Burnett of Maldon CJ, Moylan LJ and
Introduction
This is the judgment of the Court. The appeal and underlying claim concern AB's treatment in Feltham Young Offenders' Institution (“YOI”) in 2016 and 2017 when he was 15 years old.
There are two matters before us. The first is an appeal by AB against the decision of Ouseley J dated 4 July 2017 in so far as it was averse to him and relates to those parts of his claim for judicial review that were dismissed. The principal complaint is against the decision that there was no breach of the appellant's rights under article 3 of the European Convention on Human Rights (“ECHR”). Ouseley J granted AB permission to appeal on 20 October 2017.
The second is a cross-appeal by the Secretary of State. On 27 March 2018 Singh LJ granted permission for that cross-appeal to be brought against that part of the decision of Ouseley J in which he held that article 8 ECHR was engaged in this case. That was the subject of a concession made by the Secretary of State before Ouseley J, on the basis of earlier decisions of the High Court. He reserved the right to argue the contrary at an appellate level. Ouseley J went on to hold that there was a breach of article 8 but only in respect of the requirement that any interference with article 8 rights must be in accordance with law. He granted a declaration to that effect.
Ouseley J made a number of findings in AB's favour.
First, the Secretary of State had failed to comply with Rule 49 of the Young Offender Institution Rules ( SI 2000 No. 3371) (“the Rules”) pertaining to procedural oversight of the “removal from association” of AB in Feltham, YOI. Ouseley J held that there had been a breach of rule 49, which governs the circumstances in which a person can be the subject of removal from association with other inmates. The process for such removal and the further process of regular reviews of that decision did not take place, in breach of the Rules. This was acknowledged by the Secretary of State and an apology was made for it.
Secondly, Ouseley J held that the Secretary of State had failed to comply with rules 3(1), 37(1), 38 and 41 of the Rules, pertaining to AB's education. In particular, Ouseley J (again reflecting concessions made by the Secretary of State) held that there had been breaches of the provisions in the Rules relating to compulsory education for a child such as AB, who was aged 15 at the time and was therefore of compulsory school age.
So far as article 3 is concerned, Ouseley J rejected the submission that the treatment of AB at Feltham YOI between 10 December 2016 and 2 February 2017 (a period which was described before him as “Phase 1”) was sufficiently severe in all the circumstances of the case to cross the high threshold which is required before treatment can be regarded as being inhuman or degrading.
Before this Court, Mr Dan Squires QC, who appeared on behalf of the appellant, submits that the Judge erred in a number of respects in reaching the conclusion that there was no breach of article 3. He also submits that the Judge erred in not finding that there was a breach of article 8 on its substantive merits.
On behalf of the Secretary of State, Mr Tom Weisselberg QC submits that the acknowledged breaches of the Rules do not lead to the conclusion that there was also a breach of article 3. He further submits that Ouseley J was correct in rejecting the argument that there was a breach of article 3 (or a substantive breach of article 8, if it were engaged at all). On the cross-appeal, Mr Weisselberg submits that in fact article 8 is not engaged in this case.
This Court has also been assisted by written and oral submissions made by the Equality and Human Rights Commission (“EHRC”), which has intervened in these proceedings. At the hearing before us submissions for the EHRC were made by Ms Caoilfhionn Gallagher QC, who in broad terms supported the submissions made on behalf of the Appellant.
At the outset we should make clear what this appeal is not about. At [18] Ouseley J declined the request made by Mr Squires on behalf of AB “to make some unspecified but broader declaration about the policies which it is asserted Feltham YOI, and perhaps other YOIs pursue in relation to segregation and which the Claimant says is unlawful. The Grounds seek no such relief.” No appeal has been made to this Court against that part of Ouseley J's decision.
Still less is the current appeal concerned with broader questions of the management of YOIs and the treatment of children and young people in them. We are aware from the background materials which are before the Court, for example reports by Her Majesty's Chief Inspector of Prisons, that concerns have been expressed about such matters. However, we stress that those are not the subject of this appeal. What this appeal concerns is the specific facts of AB's case and whether there has been a breach of article 3 and/or article 8 ECHR on those facts.
Factual background
The following summary is taken from [3] – [10] in the judgment of Ouseley J and, where appropriate, the underlying evidence, which this Court has also seen.
AB was born on 4 March 2001. He was placed on the child protection register aged six months, due to a “likelihood of emotional abuse”, and again when six years old. He witnessed domestic violence between his parents when very young. In early 2007, when AB was five, AB's father, who suffers from schizophrenia, as well as drug and alcohol problems, assaulted AB's mother and took AB hostage in the family home. He then took an overdose in front of AB and collapsed when the police attempted to enter. AB also saw an uncle die from a drug overdose.
Since AB's parents could not care for him, from the age of seven he has been in a succession of residential placements, which all broke down. A full Care Order was made in August 2015, when AB was 14.
AB has learning difficulties and has had a Statement of Special Educational Needs (“SEN”) since 2007, amended twice, most recently in 2015.
AB has been “known to the police” since he was 10. In June 2015, when he was 14, he received a Detention and Training Order (“DTO”). He was placed at Medway Secure Training Centre. There, AB suffered abuse at the hands of officers. AB was released on licence on 23 December 2015.
In April 2016, aged 15, AB received another 12 month DTO, for criminal damage and common assault (he had fought with other pupils, pushed a teacher and kicked a football at a ceiling and windows, causing damage), and for a sexual assault he committed when he was aged 13. He was placed at HMYOI Cookham Wood. AB was detained there until 12 October 2016, when he was again released on licence.
On 22 November 2016, AB pleaded guilty to two common assaults on prison officers committed at Cookham Wood (he had bitten an officer while restrained and punched another as part of a planned revenge attack for being “disrespected”). Other incidents took place at Cookham Wood, including three assaults on officers. Sometimes he would try to resist restraint, and would bite and spit at officers. He also committed offences, soon after his release on licence, at the care home at which he was placed by the local authority.
AB was sentenced on 13 January 2017. He received another 12 month DTO. The pre-sentence report prepared for the hearing on 13 January 2017 concluded that AB's risk of dangerousness was “high”, as was his risk of causing serious harm. Even under 24 hour supervision, care and support, he still managed to offend. He also had a history of setting fires, had overly sexualised behaviour and had been found preparing weapons.
In the meantime, on 10 December 2016, AB had been sent to Feltham YOI. On arrival at Feltham, AB was immediately placed in “single unlock” (meaning he could not leave his cell when any other detainees were out of their cells), apart from some time in “three-officer unlock”, which involved three officers being present whenever he left his room.
Before Ouseley J it was contended on AB's behalf that there had been a breach of his article 3 rights by reference to three phases of detention at Feltham YOI. Phase 1 lasted from 10 December 2016 to 2 February 2017. Phase 2 lasted from 2 February to 16 February 2017 and Phase 3 was the period from 16 February to 2 March 2017. It was acknowledged that, if the argument did not succeed in relation to Phase 1, it could not succeed in relation to Phases 2 and 3. Before this Court Mr Squires no longer contended that there was a breach of article 3 after the end of Phase 1, on 2 February 2017. The focus of his submissions before us was on that period of 55 days from 10 December 2016 to 2 February 2017.
Material provisions of the ECHR
The relevant rights in the ECHR are set out in Sch. 1 to the Human Rights Act 1998...
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