R MA v Independent Adjudicator
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 30 October 2014 |
| Neutral Citation | [2014] EWHC 3886 (Admin) |
| Date | 30 October 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/4700/2012 |
[2014] EWHC 3886 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mrs Justice Elisabeth Laing DBE
CO/4700/2012
Ms Caoilfhionn Gallagher (instructed by Howard League for Penal Reform) appeared on behalf of the Claimant
Mr Simon Murray (instructed by Treasury Solicitors) appeared on behalf of the Defendant
Introduction
This is a claim for damages by the claimant. He was a child when the claim was brought, but is now an adult. At the start of the hearing I considered whether the anonymity order which had been made in his favour should continue. Neither side suggested that it should so I lifted it. The claimant was represented by Miss Gallagher and the interested party by Mr Murray. The defendant did not appear. I will refer to the interested party in this judgment as the Secretary of State. I am grateful to both counsel for their help and for their clear submissions.
This claim was brought exclusively under the Human Rights Act 1998 ("the HRA"). Although I have not heard argument on this point, it seems to me that it could have been brought as a claim in tort for false imprisonment, as on these facts the scope of Article 5 and the tort are similar, if not identical, as I shall explain.
The claimant was initially detained in a young offender institution ("YOI") pursuant to a sentence of the court. I infer that he was detained in a YOI because of the nature of that sentence. I say more about that sentence below. The YOI was Her Majesty's YOI Ashfield. It has since closed. It was run by a private contractor, Serco. The claimant was 17 years old at the relevant time. He was the subject of an adjudication by the defendant, an independent adjudicator (" IA").
Before the start of the adjudication there was an application for the IA to recuse himself. He refused. The claimant then pleaded guilty. There was then a further application for the IA to recuse himself from sentencing and he also refused to recuse himself from that exercise.
The claimant was then the subject of an award by the IA of 14 additional days. Additional days are days of custody which are to be served after the expiry of a detainee's custodial term. There was then an application for judicial review of the IA's finding of guilt, and of his award. The court quashed these by consent. Pursuant to that award, however, the claimant had served 11 additional days after the end of his custodial term, and before he was released. He was released before serving the full 14 days, not, I understand because of the judicial review, but because of the intervention of a bank holiday.
The basic issue is whether the claimant should receive an award of damages under the HRA in respect of his detention for those 11 additional days. Miss Gallagher on his behalf contends that he should and Mr Murray for the Secretary of State argues that he should not.
There are the following sub-issues:
(1) What is the legal basis of the award of additional days?
(2) What is the effect on that award of its quashing by consent?
(3) Are damages available under the HRA?
(4) The articles of the European Convention on Human Rights ("the ECHR") which are relevant to this claim are articles 5 and 6. That in turn raises two further sub-issues:
(a) is an award of damages necessary under section 8(3) of the HRA and, if so,
(b) is an award precluded by section 9(3) of the HRA?
The facts
On 2 February 2012, about 14 young offenders ("the young offenders") who were being detained at the YOI gathered in a place where they were not allowed to be. That is, on an AstroTurf sports pitch. They refused to move when they were asked to by prison staff. They said they were protesting about the removal of lavatory seats from a residential block. Some of them began to destroy a goal post. They were seen to pose a considerable risk as some of them had convictions for violence. After about four hours, prison custody officers in protective gear were deployed to remove the young offenders. They did so. Some surrendered but four or five had to be restrained by staff.
On the same day as this incident, District Judge Morgan was sitting as an IA at the YOI. His adjudication hearings had to be stopped because a lock-down was imposed on the YOI while prison staff were collected to deal with the disorder and to remove the young offenders from the sports pitch. District Judge Morgan and the lawyers were removed from the hearing room to the control room of the YOI. In the control room was a large security CCTV monitor showing the incident on the pitch. According to the Secretary of State's skeleton argument, District Judge Morgan recalls that he saw on the monitor, for a period of no more than 10 minutes, boys (whom he could not identify) milling around. He did not see any of the boys behaving violently and was not aware of any of the conversations around him by the officers who were managing the incident. The claimant puts matters rather differently. In paragraph 3.8 of the skeleton argument for the claimant, it is suggested that:
"In the present case, the IA had prior knowledge of and involvement in the disturbance which formed the basis for the charges against [the claimant]. He was directly and personally involved in the disruption caused on 2 February 2012. Depending upon his constitution he may have felt nervous or stressed when abruptly moved to the control room for his own safety. He personally witnessed officers obtaining riot gear, discussing how to manage the incident, its gravity, and so on."
The claimant also says (paragraph 1.3 of the claimant's skeleton argument):
"The IA [District Judge Morgan]… Had witnessed part of the incident, had heard and seen officers discussing their management of the incident and how disruptive they considered it to be, and had been directly affected by it. He had been moved to an 'area of safety' on the day, the control room, with his hearings abandoned, and was then escorted out of the YOI through a back route."
During the course of the incident some of the young offenders had armed themselves with pieces of a broken goal and had gone to the laundry room where they threatened staff. The YOI was shut down causing disruption and a command centre was opened.
On 3 February 2012, the young offenders were charged with being in a place where they were not authorised to be contrary to rule 55.20 of the Young Offender Institution Rules 2000, 2000 SI No 3371 ("the YOI Rules").
The Governor having considered their cases referred them to an IA for hearing as the charges were serious enough to warrant an award of additional days in accordance with the YOI rules.
On 1 March 2012 a hearing was held for the adjudication. District Judge Morgan, one of the local District Judges, had attended the YOI that day as the IA in order to conduct the adjudication hearings. The young offenders were legally represented at the hearings. Those representatives applied for the IA to recuse himself from the adjudication and from the sentences on the basis, among other things, that he had been present at the YOI when the incident had taken place. The IA refused those applications, saying that he had limited knowledge of the incident on 2 February 2012.
The hearings in each of the cases of each of the young offenders took place one by one. The Secretary of State submits that it is important to note that each of the young offenders plead guilty. The Secretary of State also says that in relation to each young offender the IA summarised the facts from the reporting officer's statements, he did not view any CCTV footage it is said and he gave an opportunity to each of the young offender's representatives to make submissions in mitigation and ask whether the reporting officer's account was agreed.
The claimant argues that the IA did use his own knowledge of the events as he said that the incident lasted four hours, a fact which was not, it is said, in the papers or evidence before him, and that he made comments about the disruption to staff time and to the running the YOI.
In sentencing each of the by then 13 young offenders, one of whom was the claimant, the IA awarded the minimum punishment to several of them. The young offender who was identified as the ringleader was awarded 18 added days and the claimant was awarded 14 added days for breaking the rules. In fact, only the claimant served any of the added days because of the length of time that the other claimants had to serve before their custodial terms came to an end.
The claim for judicial review was issued on 3 May 2012 and resolved by a consent order dated 18 May 2012 ("the consent order"). The only issue that was not resolved was the question of damages.
The consent order recited that the defendant and the interested party did not oppose the claimant's claim for judicial review of the findings of guilt on 1 March 2012 and of the awards of additional days imposed on the claimants. Paragraph 1 of the operative part of the consent order quashed the findings of guilt, and paragraph 2, the awards of additional days. Paragraph 3 stayed the claim for damages pending negotiation.
Judicial review proceedings against the second defendant, that is the YOI were said not to be affected by the consent order — see paragraph 4 of the consent order.
Those proceedings continued separately and there was a hearing in December 2012....
To continue reading
Request your trial