R T (by his mother and litigation friend Rt) v The Secretary of State for Justice and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 03 May 2013 |
| Neutral Citation | [2013] EWHC 1119 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 May 2013 |
| Docket Number | Case No: CO/3706/2012 |
[2013] EWHC 1119 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S Bench Division, Sir John Thomas
Mr Justice Cranston
Case No: CO/3706/2012
Ian Wise QC (instructed by JonasRoyBloom) for the Claimant
Clair Dobbin (instructed by Treasury Solicitors) for the Defendants
Hearing dates: 10 April 2013
Approved Judgment
This is the judgment of the court.
Introduction
The claimant, a 15 year old boy, seeks judicial review of his detention on 15 November 2011 at Birmingham Magistrates' Court after he was arrested for the breach of a bail condition. With the permission of Leggatt J he challenges the lawfulness of his detention in the cells there on the grounds that it constituted a breach of (1) section 31 of the Children and Young Persons Act 1933 ("the 1933 Act"), which requires arrangements to prevent the association of young persons with adult defendants; (2) Article 8 of the European Convention on Human Rights ("the Convention" or "ECHR"), which protects private life; and (3) section 149 of the Equality Act 2010, which demands that due regard be given to protected characteristics such as age. The claimant seeks damages for what he contends was the unlawful detention.
The parties
The claimant in this judicial review was born on 1 December 1997. At about the age of six years he was identified by his local education authority as a child having special needs. Dr Sinead Marriott, a consultant clinical psychologist at Great Ormond Street Hospital, prepared a report for the purposes of the judicial review in early March of this year. It assesses the claimant's IQ as being consistent with a severe impairment of intellectual functioning. It reveals that his suggestibility is slightly above average and records his long standing diagnosis of autism and attention deficit hyperactivity disorder (ADHD). An individual education plan, which it summarises, scored the claimant in 2012 for reading, comprehension, spelling and maths at significantly below the levels which would be expected.
The defendant is the Ministry of Justice, which exercises the state's responsibility for the administration of the courts and the detention of defendants. For some twenty years the particular functions of transferring persons to and from court and detaining them in custody there are performed by private companies under contractual arrangements with the Ministry. The current contractors are GEOAmey and Serco.
The service specifications set out in a schedule to the contracts with GEOAmey require the keeping of person escort records and for the contractor to act on information in them indicating that additional measures may be needed for those deemed at risk. They also provide for the segregation and separation of certain prisoners. In particular there is the obligation to keep separate young person prisoners, from adult prisoners. In relation to prisoner welfare for young person prisoners the contractors undertake to adhere to certain key principles such as treating them with dignity, decency and respect at all times. The service specifications continue:
"All Young Person Prisoners must be treated with particular care and sensitivity, not only because of their age but because they may be experiencing secure conditions or custody for the first time. For some Young Person Prisoners it may be the first time they have been separated from their parents. The manner in which they are received by the Contractor could influence their behaviour and attitude during the period of their Custody by the Contractor, and for the remainder of the time they spend in secure establishments. Therefore when dealing with Young Person Prisoners the Contractor's Staff must understand their unique needs and, as a minimum, apply the key principles above."
Specifically, the contractor undertakes to "ensure compliance with section 31 of the Children and Young Persons Act 1933".
The Ministry of Justice has published a contract user guide, dated 15 August 2011, "Prisoner escort and custody services". Chapter 6 is about children and young persons. It covers the suitability of staff. As well, it refers to contractors having a discretion to allow some flexibility to enable appropriate adults to remain with children and young persons who have been escorted to court from either a secure training centre or secure children's home. Separation of children and young persons from adult defendants is underlined.
The Ministry of Justice expects that under the contracts, as part of the management of custody areas, youth persons and adults will not share court cells. With one exception in Cardiff in December 2012 this expectation has been met by the contractors. Since unlike prison there are no communal areas within court cells where prisoners can meet, the only occasions where there might be an opportunity for a young person to come into contact with an adult defendant is while being escorted to and from their cell, when they are being taken to court, to see their lawyer or to use the toilet, and during the reception and discharge procedure. Everyone detained is escorted by a detention officer when in the cell area and out of their cell.
The contractual arrangements are given effect through Standard Operating Procedures, which contain the operational instructions for each custody area. The "Separation, Segregation and Cell Allocation" Standard Operation Procedure (SOP 018) provides that, "[I] n line with section 31 of the Children and Young Persons Act 1933", the senior custody officer or officer in charge must ensure that a young person is prevented from associating with an adult, not being a relative, who is charged with any offence other than an offence with which the young person is jointly charged. SOP 18 also requires that young persons and young offenders must be kept in a separate part of the custody area from adult prisoners whenever such facilities are available. Wherever possible the operations centre must provide to the senior custody officer or officer in charge, details of each person due to be delivered in court, prior to their arrival. That must include their date of birth. When prisoners are received at court the senior custody officer or officer in charge must ensure that they are placed in a cell in accordance with their gender, status, age group and risk assessment, for example, young offenders. Where the separation of young persons cannot be facilitated due to limited cell capacity, the contractors must liaise with other agencies. Adult male prisoners should be moved to the alternative accommodation, not the young persons.
Standard Operating Procedure SOP 26, "Young Person Responsibilities", requires that all senior custody officers must conduct a risk assessment to determine whether an alternative to cell accommodation is available such as a closed visits area or a cell located where the door could be left open. In many cases a cell may be the most appropriate location but other options must be considered first and rejected.
The Ministry of Justice employs a team of contract delivery managers who oversee the contractors' performance of their contractual obligations. These officials visit custody areas daily and conduct checks of the contractors' systems and operations. When failures are detected formal rectification processes are initiated. There is provision for performance improvement notices (leading ultimately to termination) and payment of liquidated damages when it is possible to demonstrate financial loss. In addition, there is a system of independent lay observers, who visit and report on the operation of the contracts and the treatment and welfare of children.
The claimant's detention at Birmingham Magistrates' Court
In November 2011, when he was 13 years old, the claimant was on conditional bail to the Birmingham Youth Court. He knew that he had breached the electronically monitored curfew condition of that bail and received a message from the police that an officer wished to speak to him. Accordingly, on Tuesday 15 November 2011, he voluntarily attended a police station in Birmingham just before eight o'clock in the morning. He was formally arrested, handcuffed and taken to the detention area at the police station. At 8.20am he was released into the custody of GEOAmey officers to be taken to the Birmingham Magistrates' Court. GEOAmey is the contractor which in the West Midlands exercises the functions of the Ministry of Justice in conveying defendants to court and detaining them there.
The custody records at the Birmingham Magistrates' Court covering the claimant's detention on 15 November 2011 are illegible. However, we know that the claimant arrived at Birmingham Magistrates' Court at 9.10am and was placed in a cell immediately opposite the position occupied by the custody suite. His cell had a glazed door which meant that he could be subject to observation by the staff. When his solicitor, Steven Jonas, arrived the claimant was handcuffed to a detention officer and taken to an interview room. In the course of walking to the interview room he passed at least two adults who had been taken from their cells by other detention officers. Mr Jonas recalls that the claimant was incredibly distressed as he was led along the corridor past the cells containing adults. In the interview room Mr Jonas spent some...
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