R The Children's Rights Alliance for England v The Secretary of State for Justice G4s Care and Justice Services (uk) Ltd and Another (Interested Parties) The Equality and Human Rights Commission (Intervener)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Laws,Lord Justice Sullivan,Lady Justice Black
Judgment Date06 Feb 2013
Neutral Citation[2013] EWCA Civ 34
Docket NumberCase No: C1/2012/0542

[2013] EWCA Civ 34

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

MR JUSTICE FOSKETT

CO/1372/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Laws

Lord Justice Sullivan

and

Lady Justice Black

Case No: C1/2012/0542

Between:
The Queen (on the Application of) The Children's Rights Alliance for England
Appellant
and
The Secretary of State for Justice
Respondent

and

(1) G4s Care and Justice Services (uk) Limited
(2) Serco Plc
Interested Parties

and

The Equality And Human Rights Commission
Intervener

Mr Richard Hermer QC and Mr Stephen Broach (instructed by Bhatt Murphy Solicitors) for the Appellant

Mr James Strachan (instructed by The Treasury Solicitor) for the The Secretary of State

Mr Jason Beer QC (instructed by DWF Solicitors) for the Interested Parties

Mr Jason Coppel (instructed by EHRC) for the Intervener

Hearing dates: 30 and 31 October 2012

Lord Justice Laws

INTRODUCTION

1

This is an appeal, with permission granted by Maurice Kay LJ on 3 April 2012, against the judgment of Foskett J given in the Administrative Court on 11 January 2012 ( [2012] EWHC Admin 8), by which he dismissed the appellant's application for judicial review seeking an order that the defendant Secretary of State provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in Secure Training Centres (STCs) in the United Kingdom.

2

There are four STCs. They were established under s.43(1)(d) of the Prison Act 1952 as inserted by s.5 of the Criminal Justice and Public Order Act 1994. They are operated by private companies under contract with the Secretary of State: three of them by G4S Care and Justice Services (UK) Ltd, and the fourth by Serco plc. The companies have participated in these proceedings as interested parties before Foskett J and in this court.

3

At paragraph 2 of his judgment Foskett J cited the description of the general purpose of an STC given by this court in Regina (C (A Minor)) v Secretary of State for Justice [2009] QB 657 (to which I must return: I will refer to the case as C):

"STCs accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable."

In 2008 there were some 272 places in all four STCs and about 250 were filled. It is appropriate to refer to the inmates as trainees.

4

The genesis of the case lies in the fact, summarised by Foskett J at paragraph 91 and not disputed in this court, that probably until July 2008 (and possibly until 2010) there was widespread unlawful use of bodily restraint techniques upon many of the children and young persons within the STC system; and very few, if any, of them appreciated at the time that what was done to them was unlawful.

5

The appellant is a registered charity whose purpose is to protect the rights of children. It says that the respondent Secretary of State is responsible for the trainees' ignorance of the fact that they have suffered a legal wrong. On its behalf Mr Hermer QC submitted that in the particular circumstances (he was at pains to disavow any "floodgates" effect) the law required the Secretary of State to take steps which would enable the trainees to discover the wrong, and thereby realise the legal rights which they possess in consequence. The amended judicial review grounds sought an order that the Secretary of State provide information to that end.

6

Mr Hermer's primary argument is that the common law's well established insistence on access to justice entitles the appellant to an order to that effect. There are two further arguments. One is that even if the Secretary of State owes no duty in the name of access to justice to provide the material information, still it is unreasonable of him (in the public law sense of the term) to decline to do so. The other is that the Secretary of State's failure to make the information available violates the trainees' rights under the European Convention on Human Rights and Fundamental Freedoms (ECHR). Mr Hermer was supported by the Equality and Human Rights Commission (EHRC) which was permitted to intervene in the appeal. The EHRC carried the burden of this last argument, because by s.30(3)(a) of the Equality Act 2006 it may bring judicial review proceedings to make good the Convention rights unconfined by the restriction of standing to a "victim", imposed by s.7(1) of the Human Rights Act 1998 (the HRA). The appellant does not have the advantage of s.30(3)(a) or any equivalent provision and therefore is not so unconfined. For his part, however, Mr Hermer sought to deploy the Strasbourg jurisprudence as a steer to the common law's direction.

BACKGROUND

7

The relevant history is fully and carefully described in the judgment of the court below. Foskett J also noted (paragraph 18) that a great deal of the background is to be found in the judgments in two other cases: C, and Pounder v HM Coroner for the North and South Districts of Durham and Darlington & ors [2009] 3 AER 150, [2009] EWHC Admin 76.

8

I will not replicate those descriptions, to which the reader may refer for a fuller understanding of the background. The account which follows suffices for the resolution of the issues on the appeal, and is fashioned so as to confront what Mr Hermer described as the four key features in the case. These were claimed to be: the trainees' vulnerability; the Secretary of State's wrongdoing towards them; their lack of knowledge that what was done was unlawful; and the Secretary of State's responsibility for that ignorance. There is little contention as to the first three. The bite of the fourth depends on the sense ascribed to "responsibility".

(1) Vulnerability

9

The trainees' vulnerability in general terms is very clear. It is spoken to at length in the appellant's evidence. Many will have had very troubled backgrounds. Some will have behaved in such a way as to confront the staff at the STC with very considerable difficulties of management. Foskett J noted the statement of Michelle Dyson, a deputy director within the Justice Policy Group of the Ministry of Justice who leads on youth justice policy:

"It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people."

Mr Hermer would no doubt also adopt the reference in McGowan (Procurator Fiscal, Edinburgh) v B [2011] 1 WLR 3121 and [2011] UKSC 54 (paragraph 68) to "the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings" leading of course, in the case of the trainees, to incarceration in a closed institution.

(2) The Secretary of State's Wrongdoing

10

Under this head it is first convenient to describe the nature of the techniques with which we are concerned. They took two forms. First there is restraint, or physical restraint, properly so called. This includes a number of holds (such as the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, and the Double Embrace Lift) designed to enable up to three members of staff to obtain physical control over an inmate; they were not intended to inflict pain. On 19 April 2004 a 15-year old trainee at Rainsbrook STC, Gareth Myatt, was asphyxiated while being restrained in one of these approved holds. Secondly, there are "distraction techniques". The PCC Training Manual for 2005 (PCC stands for "physical control in care") describes three such techniques: nose, thumb and rib distraction. These involve the measured application of pressure on those parts of the body in order to cause a short, controlled burst of pain administered to distract a trainee who is seriously misbehaving in order to bring the incident to a swift and safe conclusion. The nose distraction technique had been applied to a 14-year old called Adam Rickwood, who committed suicide at Hassockfield STC on 8 August 2004. His mother was the applicant in the Pounder case.

11

At the core of this appeal is the fact that officers at the STCs who applied these various restraint techniques at the material time genuinely but mistakenly believed that the law entitled them to do so for the purpose of maintaining good order and discipline (GOAD). It was definitively established that there was no such entitlement only after the deaths of Adam Rickwood and Gareth Myatt: see paragraphs 14 and 35 of the judgment of the Divisional Court in ( C [2008] EWHC Admin 171). The legal position, put very shortly, is as follows. S.9(3)(c) of the Criminal Justice and Public Order Act 1994 as originally enacted imposed an obligation upon custody officers "performing custodial duties at a contracted out [STC]… to ensure good order and discipline on the part [of the trainees]". But s.7(2) required that STCs be run "subject to… and in accordance with secure training centre rules". Until July 2007 Rule 38(1) of the Secure Training Centre Rules 1998 prohibited the physical restraint of any trainee save where necessary for purposes specified in the Rule; and the purposes did not include GOAD. In June 2007 the Secretary of State laid before Parliament the Secure Training Centre (Amendment) Rules 2007, which added GOAD as one of the permitted purposes. But on 28 July 2008 the Amendment Rules were quashed by this court in...

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