R (C) v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay
Judgment Date08 February 2008
Neutral Citation[2008] EWHC 171 (Admin)
Docket NumberCase No: CO/6174/2007
CourtQueen's Bench Division (Administrative Court)
Date08 February 2008

[2008] EWHC 171 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

DIVISIONAL COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay and

Mr Justice Burton

Case No: CO/6174/2007

Between
The Queen On The Application Of “c” (a Minor, By His Litigation Friend Ms)
Claimant
and
Secretary Of State For Justice
Defendant

Mr Keir Starmer QC, Mr Duran Seddon (instructed by Bhatt Murphy) for the Claimant

Mr James Eadie and Miss Sarah-Jane Davies (instructed by Treasury Solicitors) for the Defendant

Mr Richard Hermer for the Children's Commissioner

Hearing dates: 4 + 5 December 2007

Lord Justice Maurice Kay
1

This is the judgment of the Court to which both members have contributed.

2

Secure Training Centres (STCs) are the product of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”). By section 7 of that Act, the Secretary of State may contract out the provision or running of a STC. Section 7(2) then provides:

“While the contract for the running of a [STC] … is in force the centre … shall be run subject to and in accordance with the Prison Act 1952 and in accordance with secure training centre rules …”

3

Until July 2007, the relevant rules were the Secure Training Rules 1998 as amended by the Secure Training Centre (Amendment) Rules 200The part of the Rules with which this case is concerned is that dealing with removal from association, the use of force and physical restraint. In their original form, the relevant Rules provided as follows:

“36 (1) Where it appears to be necessary in the interests of preventing him from causing significant harm to himself or to any other person or significant damage to property that a trainee should not associate with other trainees, either generally or for particular purposes, the governor may arrange for the trainee's removal from association accordingly.

(2) A trainee shall not be removed under this rule unless all other appropriate methods of control have been applied without success.

(3) A trainee who is placed in his own room during normal waking hours in accordance with arrangements made under this rule shall …

(c) be released from the room as soon as it is no longer necessary for the purposes mentioned in paragraph (1) above that he be removed from association …

37 (1) An officer in dealing with a trainee shall not use force unnecessarily and, when the application of force to a trainee is necessary, no more force than is necessary shall be used.

(2) No officer shall act deliberately in a manner calculated to provoke a trainee.

38 (1) No trainee shall be physically restrained save where necessary for the purpose of preventing him from

(a) escaping from custody;

(b) injuring himself or others;

(c) damaging property; or

(d) inciting another trainee to do anything specified in paragraph (b) or (c) above,

and then only where no alternative method of preventing the event specified in any of paragraphs (a) to (d) above is available.

(2)No trainee shall be physically restrained under this rule except in accordance with methods approved by the Secretary of State and by an officer who has undergone a course of training which is so approved.”

4

On 13 June 2007 the Secretary of State, acting under powers conferred by section 47 of the Prison Act 1952 and section 7 of the 1994 Act laid before Parliament the Secure Training Centre (Amendment) Rules 2007 (the Amendment Rules). They came into force on 6 July 2007. They effected amendments to Rules 36 and 38. In Rule 36(1), after the word “necessary” the words “for the purposes of ensuring good order and discipline or” were added. In Rule 38(1), after the word “necessary” the same words –“for the purpose of ensuring good order and discipline or”– were added, as they were after the later words “no alternative method of”. Thus, removal from association and physical restraint have been rendered permissible “for the purposes of ensuring good order and discipline”, in addition to the purposes prescribed by the 1998 Rules. We shall refer to “good order and discipline” as GOAD.

5

In these proceedings the claimant seeks to challenge the lawfulness of the 2007 amendments. The grounds of challenge fall under three headings. First, it is said that the Amendment Rules were vitiated by a failure to consult at least the Children's Commissioner (CC). Secondly, complaint is made about the fact that no race equality impact assessment was carried out before the amendment. Thirdly, human rights arguments are advanced by reference to Articles 3, 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Before considering the grounds of challenge, it is appropriate to record that, whilst the claimant was remanded to a STC at the time when these proceedings were issued, the pending charges against him were later discontinued and he was released. Accordingly, he may be said to have no immediate interest in the furtherance of an application for judicial review. However, the points raised by this application are of general importance and the Secretary of State is content for the application to proceed. It is also of significance that the CC is represented as an interested party and is anxious for clarification of his position as a consultee. His stance is entirely supportive of the claimant. In these circumstances, it is appropriate for us to continue to hear and to decide the case. It is first necessary to refer to a little of the factual background.

6

The Youth Justice Board (YJB) describes STCs as

“… purpose-built centres for young offenders up to the age of 17. They are run by private operators under contracts, which set out detailed operational requirements. There are four STCs in England

• Oakhill in Milton Keynes, Bedfordshire

• Hassockfield in Consett, County Durham

• Rainsbrook in Rugby, Northamptonshire

• Medway in Rochester, Kent

STCs house vulnerable young people who are sentenced to custody or remanded to secure accommodation. They provide a secure environment where they can be educated and rehabilitated. They differ from Young Offender Institutions (YOIs) in that they have a higher staff to young offender ratio and are smaller in size, which means that individuals' needs can be met more easily. At the same time they remain large enough to be able to provide a range of facilities.

The regimes in STCs are constructive and education focused. They provide tailored programmes for young offenders that give them the opportunity to develop as individuals which, in turn, will help them stop reoffending.”

A STC can accommodate between 58 and 87 trainees.

7

The STCs' approach to behaviour management has, since February 2006, been set out in and bound by, a Code of Practice issued by the YJB for “Managing the Behaviour of Children and Young People in the Secure Estate” (the Code of Practice). The Code of Practice includes the following provisions of relevance to these proceedings:

“9.Removal from normal location

Removing children and young people from their normal location and separating them from their peers is a procedure used throughout the secure estate to assist in the management of certain types of behaviour. Although the language and some practical aspects of the process differ according to the type of establishment, the following principles must underpin the process wherever it takes place.

9.1 The decision to remove a child or young person because of problematic behaviour must be made only on the basis of an assessment that:

• The continued presence of the child or young person in the normal location threatens the good order of the establishment, or

•…

9.3 It must not be used as a punishment.

10

A system for restrictive physical intervention

10.1

Only staff who are properly trained and competent to use restrictive physical interventions should undertake them.

10.2

Restrictive physical interventions must only be used as the result of a risk assessment.

10.3

They must be mindful of the particular needs and circumstances of the child or young person being restrained (for example, medical conditions or pregnancy).

10.4

Restrictive physical interventions must not be used as a punishment, or merely to secure compliance with staff instructions.

10.5

Any intervention must be in compliance with the relevant rules and regulations for the establishment, and carried out in accordance with methods in which the member of staff has received training.

10.6

Restrictive physical interventions must only be used as a last resort, when there is no alternative available or other options have been exhausted.

10.7

Methods of restrictive physical intervention that cause deliberate pain must only be used in exceptional circumstances.

10.8

Restrictive physical interventions must be carried out with the minimum force, and for the shortest possible period of time.

10.9 The degree of physical intervention must be proportionate to the assessed risk.

10.10 Every effort must be made to ensure that other staff are present before the intervention occurs.”

8

STCs exist alongside Secure Children's Homes run by local authority social services departments (LASCHs). According to the YJB, LASCHs

“… focus on attending to the physical, emotional and behavioural needs of the young people they accommodate … [they] provide young people with support tailored to their individual needs. To achieve this, they have a high ratio of staff to young people and are generally small facilities, ranging in size from 6 to 40 beds. [They] are generally used to accommodate young offenders aged 12 to 14, girls up to the age of 16 and 15 to 16 year old boys who are assessed as vulnerable.”

9

If one...

To continue reading

Request your trial
10 cases
  • The Queen (on the application of Article 39) v Secretary of State for Education
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 24 November 2020
    ...and other groups of children who the Commissioner considers to be a particular risk of having their rights infringed …” 41 In R(C) v Secretary of State for Justice [2008] EWHC 171 (Admin), a case decided prior to the amendment of the 2004 Act, a statutory instrument was passed amending the......
  • Pounder v HM Coroner for the North & South Districts of Durham & Darlington
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 22 January 2009
    ...were promoted. 40 The matter was appealed to the Court of Appeal who delivered a highly significant judgment in the case of R (C) v Secretary of State for Justice [2008] EWCA Civ 882 on the 20 th July 2008. It concluded, first that the Divisional Court was wrong to fail to quash the amended......
  • Ben King v Secretary of State for Justice
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 18 February 2011
    ...must be considered when assessing the justification offered ( Keenan v United Kingdom [2001] 33 EHRR 38 at §§110 – 115; R (C) v Secretary of State for Justice [2008] EWCA Civ 882 at §58). 74 As to Article 8, the Grand Chamber in Dickson v United Kingdom [2008] 46 EHRR 41 at §68 confirmed th......
  • R (on the application of Brown) v Secretary of State for Work and Pensions, (Royal Mail Group Ltd and Post Office Ltd (Interested Parties); Equality and Human Rights Commission (Intervening))
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 18 December 2008
    ...as amended. Unfortunately, Buxton LJ's judgment does not elaborate the basis for this “acceptance”. 87 In the Divisional Court, at [2008] EWHC 171 (Admin), Maurice Kay LJ had pointed out, at paragraph 38, that the Home Office and the Department of Constitutional Affairs had both published ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT