R (SR) v Nottingham Magistrates Court

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeLord Justice Brooke
Judgment Date19 October 2001
Neutral Citation[2001] EWHC 802 (Admin)
Docket NumberCase No: CO/2153/2001
Date19 October 2001

[2001] EWHC 802 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Brooke

Mr Justice Newman

Case No: CO/2153/2001

The Queen on the Application of

Nottingham Magistrates' Court

Ian Wise (instructed by Bhatia Best for the Claimant)

Philip Sales (instructed by the Treasury Solicitor for the Secretary of State for the Home Department)

Stuart Rafferty (instructed by the Crown Prosecution Service for the Director of Public Prosecutions)

The Defendant was not represented




Para No


Introduction 1


SR's history 2


The pre-sentence report 10


The justices' decision on 10 th April 12


The justices' decision on 15 th May 14


The district judge's decision on 23 rd May 18


The application for judicial review 28


The two issues for the court 31


Young Offender Institutions for boys 35


Provision for girls in the prison estate 36


Secure Training Centres 37


Local Authority Secure Units 38


Some statistics 40


Provision of places 44


The Legislative Framework 47


The ECHR: the arguments in outline 56


ECHR Article 8 58


ECHR Article 14 68


The weight given to decisions made by Parliament 75


The justification for discriminatory treatment 79


The defence: (i) A legitimate objective 87


The defence: (ii) Proportionality 88


The claimant's riposte 95


The effect of the Children Act 100


The incompatibility challenge 102


The challenge to the district judge's decision 105


Addendum 113

Lord Justice Brooke

This is the judgment of the court.




1. This is an application by a 16-year-old boy, whom we will call SR, for judicial review of a decision by District Judge Harris sitting in the Nottingham Youth Court on 23rd May 2001 to remand him in custody pending sentence in Onley Young Offenders' Institution (“YOI”). SR also seeks a declaration that section 98 of the Crime and Disorder Act (“CDA”) 1998 is incompatible with the European Convention on Human Rights (“ECHR”) because it unlawfully discriminates against 15 and 16 year old boys, in contrast to girls of the same age, when they are remanded in custody pending trial, being a process in which their ECHR Article 5 rights are engaged.


SR's history


2. SR was born in January 1985. He had a wretched early childhood. His father, who was violent to both SR and his mother, may have suffered from mental health problems. Concerns have also been expressed that SR may have experienced sexual and physical abuse from him. He was eventually imprisoned following an incident when he dressed up as a Nazi and held SR and his family all hostage. Armed police had to surround their house in order to facilitate their release. A little later, when he was five years old, SR's mother was sentenced to ten years' imprisonment for a serious offence of arson when she set fire to a neighbour's house. He had lost contact with his father, and his mother is now back in prison. He has little contact with his 15-year old brother, who attends a residential special school which helps severely damaged young people. He last saw his 14-year old sister, who lives in a therapeutic community, two years ago.


3. He has been in the care of the Nottingham City Council since he was five years old. His present social worker is supervised by Mary Reville, the team manager of the council's “children in need” team. During his eleven years in care the council has often experienced difficulty in placing him in appropriate accommodation. He has had a large number of foster placements and has been placed in a large number of local authority children's homes. His behaviour has steadily deteriorated over the years. He has attended a number of special schools in the past, but he has had no schooling at all for 2–3 years.


4. In August 1998, when he was 13, he received a 3-year supervision order for 25 criminal offences. He was back in court the following month, for three more offences, and he had two more court appearances (for five more offences) before the end of that year. In March 1999, when he was in court again for nine more offences, he was sentenced to an 18-month secure training order. He was just over 14 years old. A further 3-month secure training order was made a year later.


5. In November 1999, while he was at the secure training centre (“STC”), he saw Dr Withecomb, a consultant psychiatrist. He reported that SR was showing signs of becoming institutionalised. He described him as an extremely damaged young man whose placement at Medway, in keeping with all his other care experiences, had not been an appropriate or helpful one. His poor ability to make relationships with others indicated high levels of psychological dysfunction.


6. Dr Withecomb advised that ideally SR should be managed, at least initially, in a secure but therapeutic environment. There he should enjoy a physical containment that would help him feel safe and protected from himself and others. The staff would have to be strong enough to remain motivated to work with him, despite physical and verbal attacks. Even if he responded well overall, he would also need a high level of psychological support. Without an appropriate placement of this kind, he would certainly continue on a delinquent and anti-social path. Dr Withecomb considered him to be at high risk of committing sexual acts against others and of harming himself.


7. When he was released from Medway, no permanent placement could be found for him, and he started committing offences again. In March, when he was back in court for nine more offences, he was sent back to the STC for three months. In September he was in court again (six more offences: 18-month supervision order). In October he dowsed a social worker in Penrith with flammable liquid and set fire to his arm. He was sent back to Nottingham, but a place was then found for him in a local authority secure unit (“LASU”) in Cumbria, from which he was discharged after a month due to his unmanageable behaviour. All the council's efforts to find a secure longterm placement had so far failed.


8. A diary of events kept by his social worker between December 2000 and May 2001 vividly portrays the efforts the council was making to find him appropriate accommodation during this period. Their usual resources were not available to them because SR had behaved so badly in the past, and he was barred from many suitable places. On one occasion in early 2001 he was placed at a guest house where he wrecked his bedroom. On another he was placed at a hotel where he was asked to leave after he had been making obscene phone calls to members of the public. One unit refused him when he showed no remorse for the incident the previous October, and said he would do it again. He could not be placed in an ordinary community home because he had held two children hostage at such a home the previous year.


9. His supervising officer was now Matthew Rice, of the Nottingham Youth Offending Team. On 16 th February he was found guilty of the Penrith offence, and was remanded into local authority care pending the preparation of a pre-sentence report. On that occasion Mary Reville had prepared a written report in which she told the court that the council was unable to provide accommodation for him. On 27 th March he was found guilty of two more offences.


The pre-sentence report


10. In his pre-sentence report, dated 6th April 2001, Mr Rice said there was no doubt that SR was a damaged young man with complex needs. His offending behaviour was part and parcel of his overall emotional and behavioural difficulties which had been identified at an early age. Since then his behaviour had deteriorated within the care system, and in the absence of specialist resources and a therapeutic placement many aspects of his behaviour had not been sufficiently addressed. Currently his unstructured environment and the lack of boundaries made the risk of re-offending high, and any further offences had the potential to be of a serious nature.


11. Mr Rice suggested that a long term therapeutic input, facilitated by those with statutory child care responsibilities, was needed. Prison Service establishments were clearly not equipped to deal with many aspects of his behaviour. He said that a detention and training order would only be a short term expedient.


The justices' decision on 10 th April


12. On 10th April the justices adjourned his sentencing until 19th June so that a report could be prepared by a psychiatrist in Nottingham. He was remanded into the care of the local authority for this purpose. In the event, he was seen by a different psychiatrist, and his sentencing was further adjourned until 30 th July. The district judge then gave a strong indication that he was minded to make a community rehabilitation order with a condition of psychiatric treatment. He wished the local authority to seek a secure accommodation order pursuant to section 25 of the Children Act. The later history is set out in the Addendum to this judgment.


13. Because he was not detained in custody after 10 th April, he continued to offend. When he returned to court in mid-May he admitted a few other offences. The offences alleged against him (which are marked with a “G” if he admitted them) read as follows:

2000 Oct 3 Affray (G)

2001 Jan 2 Common assault (G)

Jan 31 Malicious telephone call (G)

April 3 Threatening behaviour

April 8 Criminal damage to a window

April 9 Criminal damage to a police car

April 19 Dwellinghouse burglary

April 21 Theft of a credit card (G)

Criminal damage to a brief case (G)

Criminal damage...

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