R (M) v Gateshead Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson,Lord Justice Moore-Bick,Lord Justice Thorpe |
| Judgment Date | 14 March 2006 |
| Neutral Citation | [2006] EWCA Civ 221 |
| Docket Number | Case No: C1/2005/1528 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 March 2006 |
[2006] EWCA Civ 221
Lord Justice Thorpe
Lord Justice Dyson and
Lord Justice Moore-Bick
Case No: C1/2005/1528
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEENS BENCH DIVISION, ADMINISTRATIVE COURT
Mr Justice Calvert-Smith
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Cragg (instructed by Messrs Ben Hoare Bell) for the Appellant/Claimant
Ian Kennerley (instructed by Gateshead Council) for the Respondent/Defendant
These proceedings are concerned with the question of what duty (if any) is owed by local authorities to provide "secure accommodation" for arrested juveniles whom they are requested to receive under section 38(6) of the Police and Criminal Evidence Act 1984 ("PACE") . "Secure accommodation" is "accommodation provided for the purpose of restricting liberty": see section 25(1) of the Children Act 1969 ("the Children Act") and section 38(6) (A) of PACE.
The facts
M was born on 16 August 1988. The respondent authority (the Council") has never had parental responsibility for her. At one time, she lived with her mother in Gateshead. Then at the request of her mother, she was voluntarily accommodated by the Council for periods during 2004 until her 16 th birthday when, as she was entitled to do, she discharged herself from council accommodation and began to live independently. She was living at the TZ Hostel in Sunderland when, on the night of 10/11 November 2004, she was arrested for alleged wounding with intent contrary to section 18 of the Offences Against the Person Act 1861 and detained at Gillbridge Avenue Police Station, Sunderland. A social worker employed by Sunderland Youth Offending Team (Sunderland Social Services) , David Cabe, was called by the police to act as the appellant's appropriate adult for the purposes of the interviews that were to take place. At 19.30 hrs on 11 November, Mr Cabe made a telephone call from the police station to the Council's Emergency Duty Team to seek assistance in finding an address to which M could be bailed. He spoke to Kenneth Daglish, a social worker who had already been told by the TZ Hostel that M's placement in that hostel had been terminated.
M was charged with the offence of wounding with intent at 23.40 hrs on 11 November. Having received no communication from the police or Mr Cabe, at 00.20 hrs on 12 November, Mr Daglish telephoned the police station to inform the police and/or Mr Cabe that the Council was able to provide a bail address if necessary. It was during this conversation that Police Sergeant Smart of Northumbria Police enquired whether the Council could provide secure accommodation until M was produced before the Sunderland magistrates at 10.00 hrs later that morning. At para 6 of his witness statement, Mr Daglish says that he told Police that:
"Taking the nature and timing of the request into account, I did not consider that Gateshead could reasonably arrange secure accommodation for [M] for the duration required, even if deemed appropriate and advised Sergeant accordingly. Sergeant Smart did not enquire about the possibility of a non-secure "PACE" bed provided by the local authority, presumably taking into account the seriousness of events and the need for protection of the public. If requested by the police, it is probable that this could have been provided in the form of a placement in a foster or children's home."
Since he was of the view that nothing less than secure accommodation would suffice, Police Sergeant Smart certified in writing pursuant to section 38(6) of PACE that he had been informed by Mr Dalglish that:
"no secure accommodation is available to protect persons from serious harm from [M]. No other accommodation is secure enough for this purpose. Her detention is necessary to prevent interference with witnesses/investigation, to prevent further offending and ensure she surrenders to custody. Enquiries are still ongoing and the identity of the complainant and witnesses are known to [M]. The offence is serious and a custodial sentence is likely if convicted. The strength of the evidence is substantial and [M] is now of no fixed abode having [been] evicted from her accommodation."
In consequence, M was detained overnight at the police station before being produced at court on the morning of 12 November.
On 9 December, M's solicitors wrote to the Council asking why no secure accommodation was available. In their reply the following day, the Council said that they did not have any secure units. They said that they could access secure accommodation in other parts of the country, but a full assessment would have been required before they were satisfied that the criteria of section 25 of the Children Act were met. M's solicitors wrote again on 28 January 2004 saying that they had learnt that there were two secure units for children in Morpeth and Newton Aycliffe. They asked whether Mr Daglish had attempted to make contact with these establishments in an attempt to secure accommodation for M there. They also asked whether Mr Daglish had contacted the Youth Justice Board Placements Team to find out whether any secure accommodation was available.
The Council replied on 4 February. They said that Mr Daglish did not contact either of the two secure units mentioned "for the simple reason that neither will accept young people detained under [PACE]". Nor had he contacted the Youth Justice Board Placements Department "as the next nearest secure unit which accepts girls is Hull and had that unit agreed to accommodate your client, you will appreciate that it would have been totally impracticable to transport her to the unit and return her for 10 am the following morning."
As explained by Frances Powell, Head of Service, Children and Families, for the Council:
"11. Gateshead Council does not have any secure children's homes. The Authority, without a change in national funding, does not and will never have the resources to be able to build/adapt and staff a secure unit. This is the situation for the vast majority of local authorities within the United Kingdom. No other local authority within the North East of England has its own secure unit. Although I have no personal knowledge of the situation I know from the statement of Mr Tim Bateman that there is only one local authority within London that has its own secure beds, the only other having closed in 2004.
12. Gateshead, in satisfying its statutory responsibility to place children in secure accommodation on a welfare or youth justice basis, has to purchase beds in privately managed secure units. The nearest regional facilities are Kyloe House in Northumberland and Aycliffe Young People's Unit in County Durham. If neither of these units is willing or able to offer a bed, the authority approaches other units in Yorkshire or nationally by making a request through the Youth Justice Board who operate a form of clearing on a national basis.
13. Unfortunately neither Kyloe House nor Aycliffe Young People's Unit are currently licensed by the Commission for Social Care Inspection to provide secure beds pursuant to PACE. When Kyloe opened it did have available one bed for PACE. However when inspected in 1999 I am informed that the inspectors held that it was not appropriate for its use as a PACE bed. Following consultations with Aycliffe and the Youth Justice Board, Aycliffe is reviewing its policy on PACE beds and it is hoped that it will seek a licence to provide PACE beds. However, even if this occurs there can be no guarantee that on any particular evening a bed will be available given the chronic national shortage of secure beds; it would be unlikely that a bed that was otherwise required would be left unoccupied in case a PACE bed was required.
14. Gateshead Council takes very seriously its obligations to accommodate children under Section 38(6) of PACE. Within its borough the authority works closely with local police stations to try to ensure that suitable accommodation will be provided which will both meet the needs of the young person and protect the public. There are a small number of foster carers who can take remand placements and also the Council is able to commission remand placements from an independent fostering agency.
15. In reality in Gateshead it is rare that the police seek to assert that the accommodation offered by the authority is not adequate to protect the public from serious harm. Out of 217 PACE interviews attended by Gateshead EDT during the last 12 months, in only 5 cases (2%) did the police request a secure PACE bed as an alternative to other accommodation. Whatever the national statistics or even the situation in adjoining local authorities, these figures emphasise the level of co-operation with the police and level of service provided to young people within the borough of Gateshead. The figures also illustrate that in reality it would not be proportional for the authority to have to provide and maintain a secure bed for the rare occasion it would be required.
16. Given the current resources available in the North East of England, when required there may be occasions when it is impractical for young people to be transported to secure units outside of the area. This, of course is particularly the case when the request is not made until late at night and the young person is required to be produced at a local court first thing in the morning. If a request is made early evening or during the day on a Saturday or Sunday the situation may be different and each case has to be considered on its merits. In any...
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Legal Commentary
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