R (C (A Minor)) v Secretary of State for Justice

JurisdictionEngland & Wales
Date2009
Year2009
CourtCourt of Appeal (Civil Division)
Court of Appeal Regina (C (A Minor)) v Secretary of State for Justice [2008] EWCA Civ 882 2008 July 16, 17; 28 Buxton, Tuckey, Keene LJJ

Children - Young offender - Secure training centre - Rules permitting physical restraint of secure training centre trainees for purpose of good order and discipline - Whether inhuman and degrading treatment - Whether infringing Convention right to respect for private life - Human Rights Act 1998 (c 42), Sch 1, Pt I, arts 3, 8F1 - Secure Training Centre Rules 1998 (SI 1998/472), r 38(1)F2 - Secure Training Centre (Amendment) Rules 2007 (SI 2007/1709), r 2F3 - Statutory instrument - Validity - Relief - Statutory instrument permitting physical restraint of secure training centre trainees for purpose of good order and discipline - Statutory instrument ultra vires through lack of consultation with Children’s Commissioner and of race equality impact assessment - Assessment subsequently carried out - Whether principle that ultra vires statutory instrument to be quashed only in special circumstances - Whether statutory instrument to be quashed - Race Relations Act 1976 (c 74), s 71(1) (as substituted by Race Relations (Amendment) Act 2000 (c 34), s 2(1))F4 - Secure Training Centre Rules 1998, r 38(1) - Secure Training Centre (Amendment) Rules 2007, r 2

Secure training centres were established by the Criminal Justice and Public Order Act 1994 for the purpose of detaining young persons between the ages of 12 and 17 who had been sentenced to or remanded in custody. Rule 38(1) of the Secure Training Centre Rules 1998 provided that no one detained in a secure training centre should be physically restrained save where necessary for the purpose of preventing him from escaping from custody, injuring himself or others, or damaging property. In June 2007 the Secretary of State for the Home Department laid before Parliament the Secure Training Centre (Amendment) Rules 2007, rule 2 of which amended rule 38(1) of the 1998 Rules by providing that a trainee could also be physically restrained for the purpose of ensuring good order and discipline. The Rules were debated in the House of Lords which did not resolve to annul them and they took effect by virtue of the negative resolution procedure. The claimant, who at the time was a trainee at a secure training centre, sought judicial review by way of an order to quash the 2007 Rules on the grounds that the Secretary of State had unreasonably failed to consult with the Children’s Commissioner for England and had failed to carry out a race equality impact assessment, as required by section 71(1) of the Race Relations Act 1976, as substituted, before laying them before Parliament, and that those Rules infringed articles 3 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Divisional Court of the Queen’s Bench Division held that the 2007 Rules were unlawful on the procedural grounds but not on the grounds of breach of Convention Rights. The court in the exercise of its discretion determined that it would not be appropriate to quash the 2007 Rules in the light of the facts that Parliament had been aware of the lack of consultation and that a wide-ranging review of the use of physical restraint in secure training centres that had been commissioned by the Secretary of State was due to report in two months’ time.

On the claimant’s appeal—

Held, allowing the appeal, (1) that, although the court had discretion on a claim for judicial review to withhold relief if there were pressing reasons for not disturbing the status quo, delegated legislation which was held to be ultra vires had no specially protected position in that respect and there was no principle that it would only be quashed in special circumstances; that, rather, it was more important to correct unlawful legislation, which until quashed was universally binding, than it was to correct a single decision which affected only a limited range of people; that neither Parliament’s failure to disapprove the 2007 Rules nor the fact that the wide-ranging review was due to report could remedy the Secretary of State’s failure to perform the legal obligations which he had been required to fulfil before laying the 2007 Rules before Parliament; that, therefore, the Divisional Court should have quashed the 2007 Rules; that although a race equality impact assessment had since been carried out and the wide-ranging review had since reported, the failure to produce a race equality impact assessment before laying the 2007 Rules before Parliament was a defect of very great substantial importance which should be marked by an appropriate order; and that, accordingly, the rule of law and the proper administration of race relations law required that the 2007 Rules be quashed (post, paras 41, 4548, 50, 5455, 83, 84, 85, 86, 87).

Dictum of Webster J in R v Secretary of State for Social Services, Ex p Association of Metropolitan Authorities [1986] 1 WLR 1, 15 disapproved.

(2) That, in permitting the physical restraint of trainees for the purpose of ensuring good order and discipline, the amendments effected by the 2007 Rules by their very nature engaged article 3 of the Convention; that, since the Secretary of State could not establish that such restraint was necessary for that purpose, the 2007 Rules breached the right not to be subjected to inhuman or degrading treatment guaranteed by article 3, and the right to respect for private life guaranteed by article 8; and that, accordingly, the Rules should be quashed on those grounds as well (post, paras 64, 68, 7879, 80, 8283, 84, 85, 87).

R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, HL(E) distinguished.

Per Keene LJ. A finding that delegated legislation is ultra vires should normally lead to the legislation being quashed. Only in unusual circumstances would a court exercise its discretion to allow such legislation to remain in force (post, para 85).

Decision of the Divisional Court of the Queen’s Bench Division [2008] EWHC 171 (Admin); [2008] ACD 117 reversed.

The following cases are referred to in the judgment of Buxton LJ:

Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; [1947] 2 All ER 680, CA

Hoffmann-La Roche (F) & Co AG v Secretary of State for Trade and Industry [1975] AC 295; [1974] 3 WLR 104; [1974] 2 All ER 1128, HL(E)

R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353; [1991] 3 WLR 529; [1992] 1 All ER 212, DC

R v Secretary of State for Social Services, Ex p Association of Metropolitan Authorities [1986] 1 WLR 1; [1986] 1 All ER 164

R (BAPIO Action Ltd) v Secretary of State for the Home Department [2007] EWCA Civ 1139, CA

R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2007] EWCA Civ 498; [2008] QB 365; [2007] 3 WLR 768, CA

R (Elias) v Secretary of State for Defence [2006] EWCA Civ 1293; [2006] 1 WLR 3213, CA

R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148; [2005] 3 WLR 793; [2006] 4 All ER 736, HL(E)

R (R) v Durham Constabulary [2005] UKHL 21; [2005] 1 WLR 1184; [2005] 2 All ER 369, HL(E)

R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15; [2005] 2 AC 246; [2005] 2 WLR 590; [2005] 2 All ER 1, HL(E)

Selmouni v France (1999) 29 EHRR 403, GC

Steel v United Kingdom (1998) 28 EHRR 603

The following additional cases were cited in argument:

A v United Kingdom (1998) 27 EHRR 611

Al-Adsani v United Kingdom (2001) 34 EHRR 273, GC

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; [1969] 2 WLR 163; [1969] 1 All ER 208, HL(E)

Attorney General v Guardian Newspapers Ltd [1987] 1 WLR 1248; [1987] 3 All ER 316, HL(E)

Bensaid v United Kingdom (2001) 33 EHRR 205

Boddington v British Transport Police [1999] 2 AC 143; [1998] 2 WLR 639; [1998] 2 All ER 203, HL(E)

Bugg v Director of Public Prosecutions [1993] QB 473; [1993] 2 WLR 628; [1993] 2 All ER 815, DC

Caloc v France (2000) 35 EHRR 346

Corsacov v Moldova (Application No 18944/02) (unreported) given 4 April 2006, ECtHR

Costello-Roberts v United Kingdom (1993) 19 EHRR 112

Crédit Suisse v Allerdale Borough Council [1997] QB 306; [1996] 3 WLR 894; [1996] 4 All ER 129, CA

Fogarty v United Kingdom (2001) 34 EHRR 302, GC

Handyside v United Kingdom (1976) 1 EHRR 737

Hashman and Harrup v United Kingdom (1999) 30 EHRR 241, GC

Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623; [2003] ICR 405, CA

Kucheruk v Ukraine (Application No 2570/04) (unreported) given 6 September 2007, ECtHR

McFeeley v United Kingdom (1980) 3 EHRR 161

Malone v United Kingdom (1984) 7 EHRR 14

Matko v Slovenia (2006) 48 EHRR 1076, ECtHR

Olsson v Sweden (1988) 11 EHRR 259

R v Board of Visitors of Highpoint Prison, Ex p McConkey The Times, 13 September 1982

R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58; [1991] 3 WLR 340; [1991] 3 All ER 733, HL(E)

R v Hull University Visitor, Ex p Page [1993] AC 682; [1992] 3 WLR 1112; [1993] ICR 114; [1993] 1 All ER 97, HL(E)

R v Secretary of State for Foreign and Commonwealth Affairs, Ex p World Development Movement Ltd [1995] 1 WLR 386; [1995] 1 All ER 611, DC

R v Wicks [1998] AC 92; [1997] 2 WLR 876; [1997] 2 All ER 801, HL(E)

R (Gillan) v Comr of Police of the Metropolis [2006] UKHL 12; [2006] 2 AC 307; [2006] 2 WLR 537; [2006] 4 All ER 1041, HL(E)

R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin); [2003] 1 FLR 484

R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 AC 105; [2007] 2 WLR 46; [2007] 2 All ER 529, HL(E)

Raninen v Finland (1997) 26 EHRR 563

Ribitsch v Austria (1995) 21 EHRR 573

Silver v United Kingdom (1983) 5 EHRR 347

Smith v East Elloe Rural District Council [1956] AC 736; [1956] 2 WLR 888; [1956] 1 All ER 855, HL(E)

Sunday Times v United Kingdom (1979) 2 EHRR 245

Tomasi v France (1992) 15 EHRR 1

Vasilev v Bulgaria (Application No 48130/99) (unreported) given 12 April 2007, ECtHR

Vogt v Germany (1995) 21 EHRR 205

Z v United Kingdom (2001) 34 ...

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1 books & journal articles
  • Legal Commentary ‘A Sorry Tale’: Forcible Physical Restraint of Children in Custody
    • United Kingdom
    • Sage Youth Justice No. 12-3, December 2012
    • 1 December 2012
    ...below).12In a robust Court of Appeal lead judgment in R (on the application of C.) v Secretary of State for Justice [2008] EWCA Civ 882; [2009] QB 657 Buxton LJ was far from impressed by the SoSfJ’s disingenuous attempt at this stage of the litiga-tion to assert that the Amendment Rules had......

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