R (Scholes) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bennett |
| Judgment Date | 16 January 2006 |
| Neutral Citation | [2006] EWHC 1 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/381/2005 |
| Date | 16 January 2006 |
[2006] EWHC 1 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JUSTICE BENNETT
Case No: CO/381/2005
Mr Tim Owen QC and Mr Hugh Southey appeared on behalf of the Claimant
Mr Neil Garnham QC and Miss Jennifer Richards appeared on behalf of the Defendant
Joseph Scholes ("Joseph") was born on 20 February 1986. On 15 March 2002, when he was 16 years old, he pleaded guilty to three offences of (street) robbery and was sentenced by a judge at the Manchester Crown Court to a detention and training order for two years. Previously he had been living under the care of Trafford social services in a children's home. After Joseph was sentenced he was allocated by the Youth Justice Board ("YJB") to Stoke Heath Young Offenders Institution. On 24 March 2002 Joseph hanged himself in his cell in the health care unit.
An inquest was held into Joseph's death. It lasted for ten days in April 2004. The jury returned a verdict of accidental death and answered the questions in a questionnaire submitted by the Coroner after submissions by the parties' legal representatives. The Claimant, Joseph's mother, was represented throughout by Counsel.
On 5 May 2004 the Coroner wrote to the Secretary of State recommending a public inquiry, following submissions by the Claimant's counsel. He was of the opinion that there should be an urgent and comprehensive review of-
"the pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children's Homes ("LASCH")."
The Coroner was concerned that the allocation of a vulnerable, sixteen year old boy, like Joseph ought to be to a LASCH and on a needs basis, not a resource basis. In conclusion he wrote:-
"In all the circumstances, and so that it can include Sentencing Policy which is an essential ingredient but outside the scope of the Inquest, I consider that the Review should take the form of a Public Inquiry where all interested parties can make their views known."
This letter was followed up by letters from the Claimant's solicitors to the Secretary of State.
On 16 September 2004 the Private Secretary wrote to the Claimant's solicitors as follows:-
"Paul Goggins, Minister for Correctional Services, has asked me to thank you for your letter of 14 July, which he has now been able to consider along with the recommendations the Coroner made in his letter of 5 May following the inquest into Joseph's death.
"The coroner identified a number of issues requiring further consideration. These fall into three broad categories: the appropriateness of the sentence Joseph received; operational issues relating to the Youth Justice Board, youth offending teams and secure establishments; and the provision in the juvenile secure estate for vulnerable young offenders. Paul Goggins has decided on a series of action to address these issues. I attach a copy of the Minister's reply to the coroner, which explains what is being done.
"Having given proper consideration to the question, the Minister did not consider that a full public inquiry would be the best or most appropriate response. The main reason given by the coroner for recommending a public inquiry was to enable the sentencing issue to be considered. Clearly, a public inquiry would not be as well placed as the Sentencing Guidelines Council to review sentencing issues. The other matters can most suitably be addressed by the independent review by Mr David Lambert which the Minister has commissioned, and by the Youth Justice Board.
"You refer to the Government's investigative obligations under Article 2 of the ECHR. The Minister is satisfied that these obligations have been fully met by the inquest into Joseph's death. The further action now being taken is the proper response to issues that the inquest jury identified."
However, the Secretary of State did not let matters rest there. On 27 August 2004 a letter was written on his behalf to Lord Woolf, the then Lord Chief Justice, in his capacity as Chairman of the Sentencing Guidelines Council. A brief background of Joseph's case was given. The Coroner's letter was enclosed. The Secretary of State asked the Sentencing Guidelines Council:-
"to review the Joseph Scholes case in the context of its current consideration of guidelines for robbery offences."
The Secretary of State took two further steps. He appointed Mr Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to examine the operational issues raised by Joseph's case. Furthermore, he asked the YJB, in preparing its proposals for the future juvenile custodial estate, to take full account of the matters raised in the Inquest as to the adequacy of custodial provision for vulnerable young offenders.
The Claimant seeks an order quashing the refusal of the Secretary of State to set up a public inquiry. The sole, but important, issue raised by the Claimant's claim in these proceedings is whether the United Kingdom has complied with its duty under Article 2 of the European Convention on Human Rights to investigate the circumstances of the death of Joseph. Mr Owen Q.C, for the Claimant, made it clear that the sole challenge to the decision of the Secretary of State was that it was unlawful. He specifically disclaimed any suggestion that it was perverse, irrational or that the Secretary of State had not taken into account all relevant matters.
Mr Owen Q.C and Mr Southey, for the Claimant, and Mr Garnham Q.C and Miss Richards, for the Secretary of State, helpfully produced core submissions (as well as full skeleton arguments) which I summarise as follows:-
The Claimant.
(i) The Article 2 investigative obligation requires that where lives are lost in circumstances potentially engaging the responsibility of the State, there must be an investigation capable of identifying any shortcomings in the legislative, administrative and/or regulatory system designed to protect the right to life
(ii) there has been no Amin/Jordan compliant investigation into the sentencing regime (embracing both sentencing policy and the adequacy of the conditions under which the sentence would be served) which resulted in Joseph being detained in Stoke Heath YOI, a penal institution that was wholly unsafe in the light of his known vulnerabilities. Nor is it proposed to have any such investigation in the future.
(iii) A particular sentencing regime may directly give rise to a breach of Articles 2 and/or 3 (of the ECHR) and hence may fall within the scope of the Article 2 investigative obligation in relation to an individual, or series of deaths, in state custody.
(iv) there is overwhelming evidence that the circumstances in which Joseph came to be detained in Stoke Heath YOI exemplify a chronic, systemic problem, rather than an isolated, individual aberration, and that the problem is a sentencing regime which repeatedly causes vulnerable children (especially 15 to 17 year old boys) to be locked up in unsafe penal institutions.
(v) There is no principle of domestic law that an inquest which (because of the engagement of Article 2) was conducted in accordance with Middleton will invariably discharge the Article 2 investigative obligation in each and every case. Furthermore, the state is not relieved of its obligation under Article 2 because Joseph, had he lived long enough, might have appealed successfully his sentence by reference to Articles 2 and/or 3.
The Defendant.
(i) As the Claimant's claim is founded solely on Article 2 (and thus owed to Joseph and his family and there being no challenge on any other basis) the views of other individuals and bodies as to the sentencing of children are of no direct relevance.
(ii) the Inquest fully discharged the State's investigative obligation under Article 2. It was Amin/Middleton/Jordan compliant.
(iii) Although the Inquest did not consider issues of sentencing policy or the merits of Joseph's sentence:-
a) Article 2 does not require an examination of such matters
b) the "vice" in Joseph's case was not the sentence but the question of where it should be served given Joseph's background. These issues, it was submitted, were explored in detail in the Inquest.
c) Joseph, and/or his family after his death, could have appealed his sentence on the grounds that it breached his rights under Article 2 and/or 3, but no such appeal was brought.
(iv) The Inquest considered in great detail Joseph's placement at Stoke Heath YOI and the adequacy of its conditions. The transcript of the Inquest demonstrates, it was submitted, that issues such as pre-sentence procedure, allocation and placement, post-sentence procedure, the conduct of staff at Stoke Heath YOI, the adequacy of, and resources, for the juvenile estate, the difference in care between LASCHs, Secure Training Centres and YOIs and the nature of discrimination between boys and girls, were all considered. The parties in the Inquest were at liberty to, and did, explore all these matters in questioning the witnesses. The only issue in relation to the adequacy of the juvenile secure estate which was not explored in detail was the question of how much funding is made available to the juvenile secure estate generally. Article 2 does not, and does not now, require a full inquiry into the financial policy, or decisions, of government about resource allocation.
(v) If the Claimant was unhappy about the scope of the Inquest (which was known in advance by reason of the Coroner's interim ruling) the appropriate course would have been to challenge...
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