The Criminal Justice and Courts Act 2015 – Secure Colleges and the Legitimation of State Sponsored Violence
| Published date | 01 January 2016 |
| DOI | http://doi.org/10.1111/1468-2230.12168 |
| Author | Raymond Arthur |
| Date | 01 January 2016 |
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LEGISLATION
The Criminal Justice and Courts Act 2015 – Secure
Colleges and the Legitimation of State
Sponsored Violence
Raymond Arthur∗
The Criminal Justice and Courts Act 2015 empowers staff in secure colleges to subject young
people in custody to dangerous force for the purpose of ensuring ‘good order and discipline’.
The use of force to restrain young people in custody can cause serious physical injury, profound
psychological damage and has contributed to the custodial deaths of two young people in 2004.
Despite these dangers, in most youth custodial establishments the use of force remains high
and has been increasing. The 2015 Act will further legitimise the use of coercive violence
against vulnerable children, consequently sustaining the powerimbalance between children and
adults, diminishing the special status of childhood and violating the child’s human rights. This
comment considers the effectiveness of using force and argues that the deliberate infliction of
pain should only be used as a last resort and exclusively to prevent harm to the child or others.
INTRODUCTION
The Criminal Justice and Courts Act 2015, which received Royal Assent on
12 February 2015, legislates for the creation of huge new prisons, known as
secure colleges, holding up to 320 children as young as 12 years old. The secure
college is envisaged as a new secure educational establishment which will put
intensive and innovative education delivery at the heart of youth custody while
providing young people with the skills, qualifications and self-discipline they
need to lead productive lives on release. The advent of the secure colleges will
foreshadow the closure of secure training centres, secure children’s homes and
young offenders’ institutions. The Act also envisages allowing young people in
secure colleges to be subjected to dangerous force bystaff to enforce ‘good order
and discipline’ (GOAD).1This gives staff in secure colleges greater rights to
discipline children than parents currently enjoy and effectively exempts secure
colleges from the normal rules of child protection and welfare.2
The government believes the use of force on children, to maintain good
order and discipline, does not raise any human rights issues.3However previous
court rulings, including those of the European Court of Human Rights, have
made clear that restraining a child solely for this purpose contravenes Article 3
∗Northumbria University.
1 Criminal Justice and Courts Act 2015, Sched 10, paras 8(c) and 10.
2 Children Act 1989, s17 and s 31; Children Act 2004, s 58.
3 Ministry of Justice, Government response to the Fourteenth Report of the Joint Committee on Human
Rights, Session 2013/14: Criminal Justice and Courts Bill (London: Ministry of Justice, 2014).
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(1) MLR 102–146
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Raymond Arthur
of the European Convention on Human Rights, which provides an absolute
protection against conduct that has serious physical or psychological effects on
individuals. In this article, the rationale for using force to change the behaviour
of young people will be juxtaposed against the evidence that use of force and
violent restraint can have profound cognitive and behavioural effects on the
restrained young person, resulting in feelings of powerlessness, fear, rage and
anxiety. The common theme that emerges from this evidence is that violent
use of force profoundly affects the thoughts and behaviour of young people but
has no proven impact on improving their behaviour. In light of this evidence,
this article will consider whether this new law contravenes domestic child
protection law, European Court of Human Rights rulings and international
law obligations and standards. Moreover, it will consider whether this new law
effectively denies youngpeople in custody their status as children by prior itising
objectives such as enforcement and compliance over goals such as safeguarding
children and supporting the development of positive behaviour and attitudes,
which will in turn impact upon young people’s future compliance with the
law.
ADVERSE EFFECTS OF USING FORCEFUL RESTRAINT
The Criminal Justice and Courts Act 2015 authorises any secure college custody
officer performing custodial duties to use reasonable force where necessary to
ensure good order and discipline.4This new law contradicts the previously
stated view of the government, as expressed by Ken Clarke, the then Lord
Chancellor and Secretary of State for Justice, that force ‘should only ever be
used as a last resort where it is absolutely necessary to do so and where no other
form of intervention is possible or appropriate’.5The government’sjustification
for the change in the law is that ‘there are some situations in which the use
of some reasonable force to ensure good order and discipline will be necessary,
and that the relevant primary legislation should allow for that possibility’.6This
rationale justifying the use of force to ensure good order and discipline pays
little heed to the evidence that the use of force to restrain young people can
have a number of serious adverse effects. A degree of positional asphyxia can
result from any restraint position in which there is restriction of the neck, chest
wall or diaphragm, particularly when using restraint techniques where the head
is forced downward towards the knees. Minor injuries resulting from the use
of force have included redness to skin, welts, scratches, bruising, nose bleeds,
grazes, concussions, sprains, being unable to breathe, feeling sick or vomiting,
developing swelling to the face and neck and development of petechiae (small
blood-spots associated with asphyxiation) to the head, neck and chest. Major
4 Criminal Justice and Courts Act 2015, Sched 10, paras 8(c) and 10.
5K.Clarke,Written Ministerial Statements 10 July 2012, col 19WS.
6 Joint Committee on Human Rights, Fourteenth Report of Session 2013-14: Legislative Scrutiny (1)
Criminal Justice and Courts Bill and (2) Deregulation Bill HL Paper 189/HC 1293 (London: TSO,
2014) para 1.62.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(1) MLR 102–146 103
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