R (DT) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 20 January 2004 |
| Date | 20 January 2004 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference: Administrative Court, CO/1530/2003
: Hooper J
Appearances: I Wise (instructed by the Howard League for Penal Reform) for DT; S Kovats (instructed by the Treasury Solicitor) for the Home Secretary.
: Whether a decision to place a 15 year old female prisoner in a Prison Service establishment was lawful.
:
(i) Custodial Sentences for Juveniles
Under s. 91 Powers of Criminal Courts (Sentencing) Act 2000, those aged under 18 convicted on indictment of offences carrying imprisonment of 14 years or more may be sentenced to detention for up to the maximum prison sentence if the court is of the view that no other disposal is suitable. Those sentenced under s. 91 are liable to be detained "in such case and under such conditions" as the Home Secretary directs or arranges (s92).
The other determinate custodial sentence for those aged under 18 is the Detention and Training Order (s100), which may be for a maximum of 2 years. In such a case, the offender is kept in "such secure accommodation as may be determined by the Secretary of State" (s102), which may be a Secure Training Centre ("STC"), Young Offender Institution ("YOI"), local authority secure accommodation or "such other accommodation provided for the purpose of restricting liberty as the Secretary of State may direct" (s107).
(ii) DT's Detention
DT, a girl then aged 15, was convicted of an aggravated burglary committed on 9 November 2001 with a 19 year old male. She had been remanded into custody to Stamford House, a local authority secure children's home ("LASCH"); on being sentenced to 3 years' detention under s. 91 of the 2000 Act, she was taken to Stamford House. On 11 February 2002, staff at Stamford House wrote to the Juvenile Group at HM Prison Service recommending that, in light of the pressure on secure beds in the local authority system, DT should be transferred to the prison estate as she did not appear to be vulnerable and would be 16 in June 2002; the Prison Service endorsed this recommendation on 22 April 2002. On 24 April, DT's Youth Offending Team Officer ("YOT Officer") requested that DT be allowed to remain at Stamford House until she had sat examinations for which she was registered. It was also noted that her parents had moved to Cornwall and a location in the South West would facilitate contact.
On 28 June 2002, DT was moved to HM Prison and YOI Eastwood Park, near Bristol, where she was detained until 13 May 2003. Under s. 43 Prison Act 1952, the Home Secretary is empowered provide,"young offender institutions, that is to say places for the detention of offenders sentenced to detention in a young offender institution or to custody for life", neither of which applied to DT. She mixed with detainees aged over 18. In February 2002, HM Inspectorate of Prisons published a critical report of an unannounced inspection of Eastwood Park in October 2001: the institution was found to be "unable to provide safe, decent and constructive environment for many of the women and girls within it", in part because of the arrival of 15-17 year old girls (who numbered 12 at the time of the inspection), whose regime was little different from that for those aged over 18.
DT contrasted the regime at Stamford House with that at Eastwood Park. In the former, she was only in her room to sleep, was able to develop relationships with staff (there being one member of staff per inhabitant) and felt that she obtained help to talk about her offending behaviour; she had access to more education. At Eastwood Park, she had been locked up for considerable periods and had been unable to get to know staff, there was only one probation officer for the prison, she mixed with drug addicts and witnessed and heard many disturbing things.
(iii) Judicial Review Proceedings
DT argued that the Home Secretary had acted unlawfully in ordering her detention at Eastwood Park. She submitted that prison, which was adult and punitive, was not an appropriate place for girls as it could not provide a suitable, child-centred therapeutic environment and lacked specialist training, education and supervision; and that as child protection procedures were not uniformly in place throughout the prison service, there was a risk of bullying and self-harm. It was submitted that the decision was contrary to Prison Service policy, Art 8 European Convention and Art 37(c) UN Convention on the Rights of the Child ("UNCRC").
(iv) Home Office Policy
Under Prison Service Order 4960, girls below the age of 18 are "as a general rule" placed outside the Prison Service Estate in LASCHs or STCs; placement decisions are to be made on the merits of the individual case, taking account of various factors, including age, offence, relative vulnerability, behaviour, educational needs, health needs and proximity to family and other visitors. The Home Secretary announced in a March 1999 Parliamentary Answer that as space became available in LASCHs (with the development of STCs), 15 and 16 year old girls would be accommodated in non-Prison Service units; this would be extended to 17 year olds in due course, and in the short-term discrete units within Prison Service institutions would be provided for young women under 21. However, lack of space meant that this policy could not be put fully into practice, and less vulnerable juveniles had been transferred to free space in LASCHs: arrangements were made for dedicated provision for juveniles within 4 Prison Service institutions, including Eastwood Park. On the evidence filed, continuing investment had meant that there had been no operational need to place 15-year old girls in Prison Service accommodation since November 2002; it was anticipated that this would be extended to 16-year old girls by the end of 2003, leaving only 17-year old female juveniles in Prison Service accommodation.
The Home Secretary argued that it was proper to allow 17 year olds to mix with young offenders in YOIs, and could be in their best interests: this was for various reasons, including that it was in their interests to mix with those aged 18-21 rather than the younger children, commonly aged 12 and 13 in LASCHs, work aimed at vocational qualifications could be provided in Prison Service facilities more readily than in LASCHs, and a larger group of juveniles could assist in the prevention of bullying; it was also noted that in a particular case, a YOI might be more convenient for visits, better able to control a difficult individual, and there were no mother and baby units in LASCHs and STCs.
The Home Secretary averred that, in addition to the question of space, concerns about DT bullying younger children supported the decision not to place her in an alternative LASCH and that no good reason had been put forward for her not being transferred to Eastwood Park, which was not contrary to her best interests, particularly as it was in closer proximity to her parents; it was noted that she was at least 18 months older than other detainees at Stamford House.
(v) The UN Convention on the Rights of the Child
Under Art 3 of the UNCRC (which is applicable to those aged under 18) the best interests of children should be the primary consideration in all decisions relating to them. Under Art 37, those in detention should be separated from adults unless it was in their best interests; however, the UK had entered a reservation to this where there was a lack of suitable accommodation, and had noted in a report in June 202 that it could not withdraw this; the UN noted in October 2002 that resource constraints were the only problem and called un the UK to take the necessary measures and withdraw its reservation. DT submitted that in exercising his power to direct where she should be located, the Home Secretary should act consistently with the UNCRC, which, it was submitted, informed the content of Art 8 European Convention, which was applicable to the Home Secretary by virtue of the Human Rights Act 1998.
The Home Secretary argued that, as the UNCRC was not part of domestic law, it could not be given direct effect. In addition, the Home Secretary noted that the placement of juveniles was with young adults rather that those aged over 21.
Introduction
1. This application for judicial review concerns the lawfulness of the detention of the claimant when, whilst aged 16 years, she was detained from 28 June 2002 until 13 May 2003 at HMP Eastwood Park.
2. It is submitted on her behalf that the defendant acted unlawfully in ordering her detention in Eastwood Park and that it is unlawful for the defendant in exercising his powers under s. 92 of the Powers of Criminal Courts (Sentencing) Act 2000("the 2000 Act") to place any under 18 year old in prison with prisoners over the age of 18 years (except in exceptional circumstances). It is submitted that the defendant acted unlawfully in that he acted contrary to his own policy as set out in PSO 4960 and contrary to Art 8 of the ECHR, Art 37(c) of the United Nations Convention on the Rights of the Child (UNCRC) and Art 10(c) of the International Covenant on Civil and Political Rights. It was agreed by Mr Wise that the latter Convention could be disregarded for the purposes of this case in the light of the UNCRC.
3. The relief sought is a declaration that the claimant's detention was therefore unlawful and, if successful and at a separate hearing, damages.
4. Eastwood Park is a prison located between Bristol and Gloucester designed to hold 328 female prisoners. It holds prisoners who are 21 and over and, like 3 other women's prisons, also holds prisoners (or detainees as they are also called) under the age of 21 whose residential accommodation is in a separate wing. At Eastwood Park that is D wing. The accommodation on D wing, where the claimant's cell was located, is designated as part of a young offender institution ("YOI") within the...
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