R (C) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Tuckey,Lord Justice Keene |
| Judgment Date | 28 July 2008 |
| Neutral Citation | [2008] EWCA Civ 882 |
| Docket Number | Case No:C1/2008/0698 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2008 |
[2008] EWCA Civ 882
Lord Justice Buxton
Lord Justice Tuckey and
Lord Justice Keene
Case No:C1/2008/0698
CO/6174/2007
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
DIVISIONAL COURT
LORD JUSTICE MAURICE KAY and MR JUSTICE BURTON
Strand, London, WC2A 2LL
Mr Patrick O'Connor QC and Mr Duran Seddon (instructed by Bhatt Murphy) for the Appellant
Miss Nathalie Lieven QC and Miss Sarah-Jane Davies (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Mr Richard Hermer and Miss Carolyn Hamilton on behalf of The Children's Commissioner, intervening by written submissions
Ms Karon Monaghan QC on behalf of The Equality and Human Rights Commission, intervening by written submissions
Hearing dates : 16 and 17 July 2008
The preparation of the appeal took an unsatisfactory form. The appellant filed a 61 page skeleton, to which was appended a 24 page “summary of evidence”, together with 89 authorities. The Secretary of State filed a further 10 authorities, and the Equality and Human Rights Commission, although only an intervener, another 23. It accordingly proved difficult to reduce the proceedings to a coherent form, and that difficulty will no doubt be reflected in the judgment that follows.
Brief summary of the issues
The case concerns the permissible physical restraints that can be imposed on persons who are detained in Secure Training Centres [STCs]. STCs accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable.
All of the four STCs in England and Wales are operated by private contractors under contract with the Secretary of State. By section 7(2) of the Criminal Justice and Public Order Act 1994, and also under the terms of the operators' contracts with the Secretary of State, STCs have to be run in accordance with the Prison Act 1952 and the Secure Training Centre Rules. So far as permissible physical restraint is concerned, until July 2007 the rules restricted the use of physical restraint to cases where it was necessary for the prevention of escape, damage to property, and injury either to the person restrained or to another. In June 2007 the Secretary of State laid before Parliament the Secure Training Centre (Amendment) Rules 2007 [the Amendment Rules]. Their effect is to add to the permissible uses of restraint the case where restraint is thought to be necessary for the purposes of ensuring good order and discipline: the latter expression conveniently referred to in these proceedings by the shorthand of GOAD. As will be seen, “restraint”, although the statutory term, bears an extended meaning in practice, which again has in these proceedings been conveniently referred to as Physical Control in Care [PCC].
These proceedings seek to quash the Amendment Rules, for two types of reason. First, in purely domestic terms it is contended that the Amendment Rules were laid before Parliament in breach of various rules of law in relation to prior consultation and to the making of a Race Equality Impact Assessment [REIA]. The Divisional Court held that there had been breaches in two respects, but declined to grant the remedy of quashing the Amendment Rules. The Secretary of State does not appeal the finding that he failed to fulfil those duties. The appellant appeals against the Divisional Court's refusal of relief. Second, it is contended that the Amendment Rules involve or actually are breaches of articles 3 and 8 of the European Convention on Human Rights [ECHR]. The appellant failed in both of those respects before the Divisional Court, and appeals that finding to this court.
Much was made on both sides of the circumstances in which and the reasons for which the Amendment Rules were introduced, and the practical implications of their being quashed. As the hearing proceeded, it became clear that the history, at first sight of only background interest, was of some significance to the legal issues before us, and that there were relevant aspects of it that had not been ventilated before the Divisional Court. And during the hearing it also became clear that the Secretary of State relied on some practical and operational issues that again had not been raised, or at least had not been stressed, before the Divisional Court. It will, therefore, be necessary to give some account of those matters before turning to the legal issues. Before doing that, it will be convenient for purposes of reference to set out, without further comment at this stage, the relevant terms of the rules, and of an associated Code of Practice that played a significant part in the argument.
The rules and Code of Practice
Before amendment, the relevant rules read 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.
The Amendment Rules added the words “for the purposes of ensuring good order and discipline or” after the word “necessary” in the first line of rules 36(1) and 38(1), thus extending the permissible uses of PCC to the ensuring of GOAD.
Behaviour management in STCs is governed by a Code of Practice issued by the Youth Justice Board [YJB] in 2006. The parts of the Code of Practice discussed in these proceedings read as follows:
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.
The history
Preliminary: varieties of PCC
It is not possible to understand the history, or the appeal, without setting out in some detail what happens in practice under the authority of the rules. Rules 36 and 38 contemplate two different modes of intervention: removal from association with other trainees (rule 36); and physical restraint (rule 38). We are almost entirely concerned with the latter, PCC.
PCC comprises two elements, what we might call restraint proper; and “distraction techniques”. So far as restraint is concerned, a number of specific “holds” are permitted. These are used to prevent damage or injury by the person held but also, we were told during argument, to restrict a person offending against GOAD until he agrees to comply. Distraction techniques are different. The YJB in its evidence to the House of Lords and House of Commons Joint Committee on Human Rights in 2008 [the JCHR] described them as relying on techniques that create pain, for instance by a blow to the nose or by pulling back the trainee's thumb. The YJB said in its evidence that the techniques
…are designed for use in dangerous or violent situations where a person is at serious...
To continue reading
Request your trial
-
The King (on the application of K) v Secretary of State for Work and Pensions
...to be engaged. Whereas the defendant contends the test is whether such impacts are obvious. 184 The claimant relies on R (C) v Secretary of State for Justice [2008] EWCA Civ 882, [2009] QB 657 in which, the Court of Appeal observed at [39], referring to the judgment of the Divisional Cour......
-
TH (Bangladesh) and Others v Secretary of State for the Home Department
...that this was only so exceptionally. 16 Considerable reliance was placed by Ms Harrison on the decision of this court in R (C (a Minor)) v Secretary of State for Justice [2008] EWCA Civ 882, [2009] QB 657 and the references in it (at [55]) to the rule of law and proper administration. That......
-
R AB (by his Mother and Litigation Friend CD) v Secretary of State for Justice
...space which were “short, occasional and minor” could rebut that presumption. d) In R (C (A Minor)) v Secretary of State for Justice [2008] EWCA Civ 882; [2009] QB 657, the Court of Appeal found that physical restraint of children detained in Secure Training Centres to maintain good order ......
-
The Queen (Haidar Ali Hussein) v The Secretary of State for Defence
...the scope of the principle in Refugee Legal Centre. The appellant's reliance on R (C A Minor) v. Secretary of State for Justice [2008] EWCA Civ 882 encounters the same difficulty. 72 In any event, I have come to the clear conclusion that there is nothing inherent in the policy permitting ch......
-
Treating 17-Year-Olds in Police Custody as Children, Not Adults
...[2002] EWHC2497 (Admin); R v Durham Constabulary [2005] UKHL 21; R (on theapplication of C) v Secretary of State for the Justice [2008] EWCA Civ 882). Inso doing, this ruling adds to an emerging but distinctly children’s rightsjurisprudence. The significance of this is twofold. First, the ......
-
Theorising Children's Rights in Youth Justice: The Significance of Autonomy and Foundational Rights
...criminal justice context, examples of children’s human rightsinclude R (on the application of C) vThe Secretary of State for Justice [2008] EWCA Civ 882; [2009]QB 657 and R (on the application of BP) vSecretary of State for the Home Department [2003] EWHC1963 (Admin) at [27] (although the a......
-
Judging the judges: are they adopting the rights approach in matters involving children?
...Rights Act, in light of the provisions of the CRC. This approach was subsequently followed in R (C) v Secretary of State for Justice [2009] 2 WLR 1039, 1059 (Buxton LJ) (in relation to European Convention art 3) and R (Pounder) v HM Coroner for the North and South Districts of Durham and Da......
-
The Criminal Justice and Courts Act 2015 – Secure Colleges and the Legitimation of State Sponsored Violence
...Ministry of Justice YouthJustice Statistics: 2012/13 England and Wales (London: Ministry of Justice,Youth Justice Board, 2014) 4.32 [2008] EWCA Civ 882.33 ibid at [79].34 ibid.C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.(2016) 79(1) MLR 102–146 The Criminal......