R (Scholes) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Pill,Lady Justice Arden
Judgment Date17 Oct 2006
Neutral Citation[2007] UKHRR 112,[2006] EWCA Civ 1343
Docket NumberCase No: C1/2006/0155

[2006] EWCA Civ 1343

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION – ADMINISTRATIVE COURT

MR JUSTICE BENNETT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Pill and

Lady Justice Arden Dbe

Case No: C1/2006/0155

C03812005

Between:
Mrs Yvonne Scholes
Appellant
and
Secretary of State for The
Home Department
Respondent

MR T OWEN QC & MR H SOUTHEY (instructed by Messrs Bhatt Murphy) for the Appellant

MR N GARNHAM QC & MS J RICHARDS (instructed by The Treasury Solicitor) for the Respondent

Lord Justice Pill

Introduction

1

This is an appeal from a decision of Mr Justice Bennett sitting in the Administrative Court on 16 January 2006. The judge refused an application for judicial review made by Mrs Yvonne Scholes ("the appellant") . The appellant had sought to quash a decsion of the Secretary of State for the Home Department ("the Secretary of State") not to convene a public inquiry into the death of the appellant's son Joseph Scholes.

2

On 15 March 2002, Joseph Scholes, then just sixteen years old, pleaded guilty, at Manchester Crown Court, to three offences of robbery and was sentenced to serve a detention and training order for two years. He was allocated by the Youth Justice Board ("YJB") to Stoke Heath Young Offender Institution. On 24 March 2002, Joseph hanged himself in his cell in the healthcare unit at the Institution.

3

At the inquest held into Joseph's death, which lasted for ten days in April 2004, the jury returned a verdict of accidental death. The Inquisition stated: "Accidental death in part contributed because the risk was not properly recognised and appropriate precautions were not taken to prevent it". On 5 May 2004, following submissions by counsel who had appeared for the appellant at the Inquest, the Coroner wrote to the Secretary of State recommending a public inquiry. The Coroner, exercising his powers under rule 43 of the Coroners Rules 1984, expressed the view 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 stated:

"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".

By letter of 16 September 2004 the Secretary of State refused the request.

4

The appellant's case before this court, as before the judge, is that the Secretary of State, in deciding not to convene a full public inquiry, has failed to comply with the United Kingdom's duty, under Article 2 of the European Convention on Human Rights, to investigate the circumstances of the death of Joseph. Upon receipt of the Coroner's letter, the only rational decision was to hold such an inquiry, it is submitted.

5

The opening words of Article 2(1) provide that "everyone's right to life shall be protected by law". On behalf of the appellant, it is submitted that two matters which must be investigated to comply with Article 2 have not been investigated:

"a) the sentence imposed on Joseph Scholes;

b) the extent to which a lack of resources resulted in Joseph Scholes being allocated to a Young Offender Institution (YOI)"

In a series of cases in the European Court of Human Rights, and in domestic courts, it has been held that the obligation under Article 2 includes an obligation, following a death in custody, to conduct an effective investigation into alleged breaches of the right to life.

The facts

6

The robberies were street robberies committed with two other young men in Sale in the late evening of 6 December 2001. Joseph had moved into a local authority children's home on 30 November 2001, that is a week before the offences, after a family crisis. Counsel appearing for him at the hearing before His Honour Judge Lever at Manchester Crown Court drew the judge's attention to references in the Pre- Sentence Report to Joseph's "history of self harm and … threatened suicide" and to a reference in the report to the belief of a psychiatrist [Dr Fitzpatrick] that the "self harming behaviour may escalate". Attention was also drawn to a letter from a social worker which accompanied the Pre-Sentence Report and also referred to attempted self-harm and the social worker's concern "for his safety and welfare given his history of low mood of self-harm when in distress".

7

When sentencing Joseph, the judge referred to those passages in the documents and stated that they must be "most expressly drawn to the attention of the authorities, please". That remark was made in the course of counsel's submissions; it was substantially repeated in the sentencing remarks. Counsel advised, in writing, an appeal against sentence on the ground that the sentence was manifestly excessive but an application for leave was not in the circumstances pursued.

8

The Inquest was conducted by Mr J P Ellery, HM Coroner for the Mid and North Division of the County of Shropshire, sitting with a jury. It is accepted on behalf of the appellant that the facts were investigated with exemplary thoroughness and that what happened to Joseph has been thoroughly investigated. Mr Owen QC, for the appellant, accepts the judge's opinion that the Inquest was a model of what could be done within the Inquest system.

9

What were not investigated at the Inquest were, submits Mr Owen, the fundamental questions of sentencing policy, available facilities and resources. The Coroner ruled that the Inquest could not go behind the sentence and could not go into matters of resources "save perhaps for observing that, if it is the case, that lack of resources may have been a factor, whether critical or contributory". No complaint is made about those rulings of the Coroner. The submission is that the function of the Inquest being limited, a public inquiry into what Mr Owen describes as the sentencing regime is required.

10

The sentence imposed by the judge was a lawful sentence. He decided that a custodial sentence was required (a decision open to challenge in the Court of Appeal Criminal Division) and, that being so, a period of detention and training was the appropriate sentence (Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") . Section 102(1) of the 2000 Act provides:

"An offender shall serve the period of detention and training under a Detention and Training Order in such secure accommodation as may be determined by the Secretary of State or by such other person as may be authorised by him for that purpose".

The duty to provide the "secure accommodation" is undoubtedly upon the Secretary of State and not upon the judge. Indeed, the statute provides that it is for the Secretary of State to determine in what secure accommodation the offender shall serve the period of detention and training. That accords with well established principles as to the division of powers and responsibilities between the judiciary and the executive.

11

It thus became the responsibility of the Secretary of State, a responsibility entrusted by him to the YJB, to decide where Joseph should be detained. It was open to the YJB to place Joseph either in a Young Offender Institution ("YOI") , a Secure Training Centre ("STC") or in a Local Authority Secure Children's Home ("LASCH") . Joseph should have been placed in a LASCH, it is submitted, having regard to his vulnerability. In his letter of 2 May 2004, the Coroner stated:

"Without going behind the sentence Joseph received at this Inquest it does seem to me essential that there is 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. The statistics indicate that more young offenders are being sent to custody without a proportionate increase in Local Authority Secure Units/Secure Children's Homes to accommodate the inevitable increased proportion of those receiving such sentences who are considered to be vulnerable."

He added:

"It seemed clear to me that the allocation of disturbed and vulnerable young children (typically 15 and 16 year old boys) should be determined on a needs basis and not a resources basis. This is all the more important if Courts are sentencing such vulnerable and disturbed young offenders in the belief, mistaken or not, that recommendations, such as that contained in the pre-sentence report and endorsed by the Sentencing Judge can be implemented."

In a further letter, the Coroner repeated his concerns "as to the availability and allocation of secure accommodation for vulnerable juvenile offenders such as Joseph".

12

The appellant's solicitors also wrote to the Parliamentary Under Secretary requesting a full public inquiry. The reply, dated 16 September 2004, stated:

"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."

13

The reply to the Coroner, also dated 16 September 2004, stated:

"In fact the new Sentencing Guidelines Council,...

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