R "AB" (a child, by his Litigation Friend) v The Secretary of State for Justice Youth Justice Board (Interested Party) Equality and Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 04 July 2017 |
| Neutral Citation | [2017] EWHC 1694 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/852/2017 |
| Date | 04 July 2017 |
[2017] EWHC 1694 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/852/2017
and
and
Dan Squires QC (instructed by The Howard League for Penal Reform) for the Claimant
Tom Weisselberg QC and Sarah Hannett (instructed by the Government Legal Department) for the Defendant and Interested Party
Caoilfhionn Gallagher QC and Hayley Douglas (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing dates: 25–27 April 2017
Approved Judgment
The Claimant, anonymised as AB because of his youth, who turned 16 after the start of proceedings in February 2017, is serving a 12-month Detention and Training Order, DTO, in Feltham Young Offender Institution. He is due for release in July 2017. His behaviour is, on any view, challenging. He has been removed from association in circumstances which the Claimant's lawyers, the Howard League for Penal Reform, describe as "solitary confinement", and as "prolonged solitary confinement". This is said to involve a breach of the YOI Rules, and Articles 3 and 8 ECHR. The YOI Rules are said to have been further breached in relation to the provision of education.
The Secretary of State for Justice, the Defendant, SSJ, and the Youth Justice Board, YJB, the Interested Party, accept that the Claimant's removal from association was, in large part, in breach of the YOI Rules, and that he has not received the education which he should have received. There is a dispute about what remedy is appropriate. They deny that Article 3 was breached but concede at this level that Article 8 was breached in certain respects. The YJB has the general duty to monitor the operation of the youth justice system, advising the SSJ about it, and promoting good practice within it.
The background to AB
AB, who was born in 2001, has had a very difficult childhood, suffering emotional and physical abuse, and witnessing domestic violence between his parents, when he was very young. His father, who has drug and alcohol problems, and suffers from schizophrenia, took the 5-year-old AB and his sister hostage in the family home; there was a siege, and when the police entered, the father took an overdose in front of AB and collapsed. He also saw an uncle die from a drug overdose. He was placed on the Child Protection Register when 6 months old and again when 6 years old, because of the likelihood of emotional abuse. His parents could not care for him, and from the age of 7, he has been in a succession of residential placements which all broke down. A full Care Order was made in August 2015. AB has learning difficulties and has had a Statement of Special Educational Needs, SEN, since 2007, amended twice, most recently in 2015. He has been diagnosed as having post-traumatic stress disorder, PTSD, Conduct Disorder and Attention Deficit Hyperactivity Disorder, ADHD.
The Claimant has been "known to the police" since he was ten, and has a series of convictions. He received a 12-month DTO in June 2015, which he served in another secure establishment, from which he was released on licence on 23 December 2015. While there he was abused by officers. On 13 April 2016, he received a further 12-month DTO for offences committed before he was sent to a secure training centre, STC, for offences of criminal damage and assault at school (fighting with other pupils, pushing and grabbing a teacher, smashing windows) and, as a thirteen-year-old in 2014 for sexual assault. He was detained in Cookham Wood YOI until 12 October 2016, when he was again released on licence. On 13 January 2017, following earlier pleas of guilty, he received a further 12-month DTO for other offences, some committed in Cookham Wood YOI and some committed after release, in the care home in which the local authority placed him. He also breached the requirements of two periods of conditional discharge.
These more recent offences were significant for his management in Feltham YOI. In April 2016, he had assaulted a prison officer by biting him during the course of restraint, and in June 2016 had assaulted an officer, punching him several times in the side of the head. This was a planned revenge attack for being "disrespected." Those were the Cookham Wood offences for which he was sentenced in January 2017. But they were not the only incidents at Cookham Wood. He assaulted officers on three later occasions, first punching one, two weeks later kicking one while staff were attempting to retrieve an improvised weapon, and the next day, 4 September 2016, assaulting three officers by punching one in the face, kicking one in the face and kneeing one in the face. He had to be restrained by staff on occasions and sometimes would struggle; he would try to bite them and spat at them. In the care home, on 2 December 2016, while intoxicated, he indecently exposed himself to and tried to kiss a female carer.
He was remanded to Feltham YOI on 10 December 2016, after pleading guilty to the care home offences. He had committed those offences while on bail, after pleading guilty on 22 November 2016 to the assaults on the Cookham Wood YOI officers.
The pre-sentence report, PSR, dated 10 December 2016 makes for disturbing reading. He had a history of violent offences, including assaults on members of staff, which appeared to be a pattern of behaviour when faced with a confrontational situation. His long history of physically and verbally aggressive behaviour indicated a child who was likely to have experienced significant harm. His impulsiveness, aggressiveness and destructive tendencies were self-evident. There had been several incidents of his displaying inappropriately sexualised behaviour. He could not articulate himself when frustrated and this led to violent outbursts; a lack of emotional maturity led to his lashing out. He had convictions for arson and possession of CS gas. His current risk of causing serious harm was "High".
The author of the PSR also concluded that the offender's risk of "dangerousness" was "High", in the light of his extensive and frequent past offending, his increasingly violent, sexualised and verbally aggressive behaviour whether in a STC or care home, and towards staff or fellow residents. At one, he had had to receive education on a one-to one basis, and he was segregated from young females. He had had to be restrained 8 times within 5 days. An SEN Report from 2015 said that staff, "particularly female staff", were wary of working with him on a one-to-one basis. He had refused to engage with mental health services in relation to his sexualised behaviour on many occasions. Even under 24-hour supervision, care and support, he had still managed to offend.
The PSR described the problems he had created in secure accommodation before he was transferred to the STC, where eighteen incidents were recorded against him in eleven weeks. At Cookham Wood YOI, his abusive, aggressive and threatening behaviour to staff and inmates, including the preparation of a weapon, and setting a fire, had led to him being on segregation for a large part of his time there and on "3-officer unlock". That requires three officers to be present whenever he is removed from his room. Less serious versions of some of these incidents were provided on behalf of AB.
On arrival at Feltham YOI, the Claimant was placed in the induction unit, Bittern, and immediately put on "single unlock" which means that the young offender cannot leave his room when any other detainees are out of their cells. This has the effect of removal from association. He has remained on single unlock throughout his time at Feltham. He has also been on 3-officer unlock for some of the time there. This regime was deployed at the start of AB's detention, because of his history of violence against prison officers at Cookham Wood. Its later continuation was for his safety. He could not be left alone with any female member of staff because of his conviction for a sexual offence, and indeed his abusive behaviour towards women. This was explained to him.
Removal from association: the Rules and the admitted breaches
S47 (1) of the Prisons Act 1952 permits the SSJ to make rules for the regulation and management of YOIs. The Young Offender Institution Rules, SI No.2000/3371, are the relevant Rules.
Rule 49 deals with removal from association:
"(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that an inmate should not associate with other inmates, either generally or for particular purposes, the governor may arrange for the inmate's removal from association for up to 72 hours.
(2) Removal for more than 72 hours may be authorised by the governor in writing who may authorise a further period of removal of up to 14 days.
(2A) Such authority may be renewed for subsequent periods of up to 14 days.
(2B) But the governor must obtain leave from the Secretary of State in writing to authorise removal under paragraph (2A) where the period in total amounts to more than 42 days starting with the date the inmate was removed under paragraph (1).
(2C) The Secretary of State may only grant leave for a maximum period of 42 days, but such leave may be renewed for subsequent periods of up to 42 days by the Secretary of State."
The policy in the Prison Service Order, PSO, 1700 produced by NOMS, was amended in September 2015, and the relevant guidance is entitled "Reviewing and Authorising Continuing Segregation and Temporary Confinement in Special Accommodation". It imposes...
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