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

JurisdictionEngland & Wales
JudgeMr Justice Foskett
Judgment Date11 January 2012
Neutral Citation[2012] EWHC 8 (Admin)
Docket NumberCase No: CO/1372/2011
CourtQueen's Bench Division (Administrative Court)
Date11 January 2012

[2012] EWHC 8 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Foskett

Case No: CO/1372/2011

Between:
The Children's Rights Alliance for England
Claimant
and
Secretary of State for Justice
Defendant

and

G4s Care and Justice Services (uk) Limited

and

Serco Plc
Interested Parties

Richard Hermer QC and Alex Gask (instructed by Bhatt Murphy Solicitors) for the Claimant

James Strachan (instructed by The Treasury Solicitor) for the Defendant

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

Hearing dates: 22–24 November 2011

Mr Justice Foskett

Introduction

1

This case arises out of allegations of unlawfully executed restraint of, or other physical interventions with, children and young persons held or, more likely, formerly held in one or other of the four Secure Training Centres in the UK.

2

The general purpose of a Secure Training Centre (an 'STC') was described by the Court of Appeal in Regina (C (A Minor)) v Secretary of State for Justice [2009] QB 657 as follows:

"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."

3

These four institutions were established under section 43(1)(d) of the Prison Act 1952 as inserted by section 5 of the Criminal Justice and Public Order Act 1994. Each is operated by a private company under contract with the Secretary of State, currently 'G4S Care and Justice Services (UK) Limited' in relation to the STCs at Medway (in Chatham), Rainsbrook (near Rugby) and Oakhill (in Milton Keynes) and 'Serco PLC' in relation to the STC at Hassockfield (in County Durham). The first STC (Medway) was opened in April 1998 and the last of the four (Oakhill) was opened in August 2004.

4

The contracts to which the STCs are subject set out detailed operational requirements with which each is expected to conform. Medway, Rainsbrook and Hassockfield STCs are each subject to contracts managed by the Youth Justice Board ('YJB') on behalf of the Secretary of State. Oakhill STC is operated under a contract directly with the YJB. The YJB is "an executive non-departmental government body set up under the Crime and Disorder Act 1988": see Blake J in Pounder v HM Coroner for the North and South Districts of Durham and Darlington and others [2009] EWHC 76 (Admin) at paragraph 3. I will say more about the function of the YJB in this context in due course (see paragraph 80 below).

5

There is no issue that the children and young persons who may have been affected by the matters that arise in this case were potentially very vulnerable. In her principal witness statement in these proceedings, Ms Michelle Dyson, a deputy director within the Justice Policy Group of the Ministry of Justice who leads on youth justice policy, which includes policy matters relating to the use of restraint on young people in custody, said this:

"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."

6

Those detained will not, of course, have been in any of the STCs other than for reasons associated with established wrongdoing or, for those on remand awaiting trial, for alleged wrongdoing. Many will, of course, have had very troubled backgrounds for the reasons given by Ms Dyson. For many reasons, some will have presented the staff with very considerable difficulties in terms of their management because of their behaviour. It follows that some of those detained will from time to time have exhibited behaviour which would be difficult, if not impossible, to deal with without the staff at the STC resorting to some level of force or physical restraint. It is the use of physical restraint in certain circumstances and the use of certain specific techniques on children detained in STCs up until, it is said, about July 2008 or possibly later that forms the background to these proceedings. It is also not in issue that during a fairly prolonged period (see paragraphs 43–77 and 91 below) restraint techniques were used in these STCs for unlawful purposes. It is those unlawful actions that underlie the claim made in these proceedings.

The Claimant in these proceedings

7

The Claimant in these judicial review proceedings is the Children's Rights Alliance for England ('CRAE') which is a small registered charity and company limited by guarantee. It was founded in 1991 and seeks to protect the rights of children through lobbying, by bringing or supporting test cases and by using national, European and international human rights mechanisms to highlight issues concerning the rights of children. It also provides free legal information and advice to assist children in accessing and enjoying their fundamental rights.

8

An issue has been raised by the Defendant concerning the standing of CRAE to bring these proceedings. Although, strictly speaking, it goes to the question of whether there is jurisdiction to hear the substantive application for judicial review in so far as that application is based on Convention rights (cf. R. v. Social Services Secretary, ex p. CPAG [1990] QB 540, 556, per Woolf LJ), I propose to deal with those arguments in due course after addressing the merits of the claim (see paragraphs 212–225 below). I am unaware of the extent to which the point, though plainly taken by the Defendant prior to the oral hearing before Collins J, was deployed at that hearing. Since the issue could go only to reliance upon Convention rights and the Claimant was seeking also to rely upon the common law, it is possible that the issue was left to one side. At all events, the point has been argued fully before me and I will address it as appropriate in due course.

The relief sought and the competing arguments in a nutshell

9

In the Amended Grounds, submitted after Collins J had granted permission at an oral hearing following rejection on the papers by Mitting J, the Claimant seeks an order requiring the Defendant "to provide information, or to facilitate the Claimant providing information, to the following categories of children (and/or their carers) on the unlawful nature of the legal status of restraint techniques used in STCs and their consequential legal rights:

(a) Children who were subjected to restraint for 'good order and discipline' in STCs between the opening of the STCs and the introduction of the new PCC Manual on 19 August 2010;

(b) Children who were subjected to nose, rib or thumb 'distraction techniques' or other deliberately painful compliance techniques in STCs between the opening of the STCs and the introduction of the new PCC Manual on 19 August 2010."

10

PCC stands for 'physical control in care' and the Manual referred to is the 'Physical Control in Care Training Manual'. Ms Dyson says that the PCC training manual was developed by what is now known as the National Tactical Response Group ('NTRS') within the National Offender Management Service ('NOMS') which is part of the Ministry of Justice. The 2005 version was issued by HM Prison Service Training and Development Group which I assume was the forerunner to the NTRG.

11

As will become plain, the PCC Manual was changed at various times during the material period. In her principal witness statement Ms Dyson says this:

"The manual was first produced in 1997 in preparation for the opening of the first STC in 1998. The manual itself was republished in 2003 and again in 2005, but the techniques in any particular version of manual are also subject to changes from time to time …. Thus the 2005 version was subject to a number of modifications, before the manual was replaced in its entirety in July 2010 …."

12

Ms Dyson also says that it is important to note that the PCC Manual itself is a training manual for instructors and learners to use when being trained in the use of PCC and that it is not, in itself, a policy or governance document. That is no doubt correct, but it does fall to the Secretary of State to approve the PCC Manual before it is used. He will do so only if the PCC techniques in the manual have been endorsed by a panel of medical experts specifically appointed to consider "the methods of physical control of children as developed by the Prison Service College and to comment on the suitability of these methods for use by custody officers performing … custodial duties at STCs …". It would, in my judgment, be natural, in those circumstances, for the manual to be the authoritative source of reference for those employed as custody officers in an STC in order to confirm, if there was any doubt, the permitted techniques. All such officers were required to be trained in these techniques in any event: see Rule 38(2) of the Secure Training Centre Rules 1998 set out in paragraph 26 below.

13

Ms Dyson confirms that the approach referred to in the preceding paragraph "applies to distraction techniques as well as holds" and, given that to be so, this is an appropriate point at which to define or describe the two types of physical intervention that the Claimant refers to in the claim for relief as set out in paragraph 9 above. The distinction between the two was referred to in paragraph 10 of Regina (C (A Minor)) v Secretary of State for Justice, but I propose to amplify somewhat what was said there:

(a) restraint (or physical restraint)

This...

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1 books & journal articles
  • Legal Commentary ‘A Sorry Tale’: Forcible Physical Restraint of Children in Custody
    • United Kingdom
    • Sage Youth Justice No. 12-3, December 2012
    • 1 December 2012
    ...following consul-tation with the YJB, Centres had declined to pass on the CRAE’s letters. In CRAE v Secretary of State for Justice [2012] EWHC 8 (Admin) the charity argued that the SoSfJ was under a positive obligation to inform those who might have been subjected to unlaw-ful restraint of ......

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