Willow GIA 428 2015
| Jurisdiction | UK Non-devolved |
| Judge | Judge K Markus QC |
| Judgment Date | 24 March 2016 |
| Neutral Citation | 2016 UKUT 157 AAC |
| Subject Matter | Information rights |
| Respondent | Information Commissioner and Ministry of Justice |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | GIA 428 2015 |
| Appellant | Willow |
IN THE UPPER TRIBUNAL Appeal No. GIA/428/2015
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge K Markus QC
DECISION
The appeal is dismissed.
Representation:
Appellant: Mr Ian Wise QC, Mr Michael Armitage (counsel)
1st Respondent: Ms Elisabeth Kelsey (counsel)
2nd Respondent: Mr Oliver Sanders (counsel)
REASONS FOR DECISION
- This appeal relates to a request for disclosure of an unredacted version of the Minimising and Managing Physical Restraint training manual (“MMPR”) which sets out the techniques of physical restraint used in Young Offender Institutions (YOIs) and Secure Training Centres (STCs). On 27 March 2014 the Information Commissioner decided that the redacted information was exempt from disclosure under section 31(1)(f) Freedom of Information Act 2000 (FOIA) and that the public interest favoured withholding it. On 1 December 2014 the First-tier Tribunal dismissed the Appellant’s appeal
- I gave the Appellant permission to appeal following an oral hearing on 16 September 2015. An oral hearing of the appeal took place before me in London on 11 February 2016
- I have decided that there was no error of law by the First-tier Tribunal. The decision was not irrational and the reasons were adequate. Article 3.1 of the UN Convention on the Rights of the Child was not relevant to the decision.
Legislative framework
- Section 1 FOIA requires public authorities to disclose information which they hold if it is requested. By section 2 the duty does not apply to “exempt information”, either because an absolute exemption is conferred by section 2(3) or because “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”: section 2(2)(b).
- Section 31 is not one of the provisions subject to absolute exemption. So where that section is engaged, information must be disclosed subject to the application of the public interest test in section 2(2)(b).
- Section 31(1)(f) provides:
“(1) Information … is exempt information if its disclosure under this Act would, or would be likely to, prejudice –
…(f) the maintenance of security and good order in prisons or in other institutions in where persons are lawfully detained, …”
Background
- The Appellant is a qualified social worker and has considerable expertise in the area of children’s rights. In particular, she has had a long-standing interest in and concern about use of restraint techniques on children in custody. She was a member of the expert panel for Lord Carlile QC’s independent inquiry into the use of restraint and other measures in respect of children in custody. Between 2000 and 2012 the Appellant was National Co-ordinator of the Children’s Rights Alliance for England. During that time she had made a request under FOIA for full disclosure of the Physical Control in Care (PCC) restraint manual which was then in use in STCs. The Youth Justice Board refused disclosure, relying on section 31(1)(f) FOIA. The Commissioner ordered disclosure on the ground of the public interest in disclosure, taking into account the level of debate and controversy surrounding the use of physical restraint and the evidence that those techniques can result in physical harm. In 2012 the Commissioner upheld an exemption under section 31(1)(f) in relation to a restraint manual for use in adult prisons (“The Use of Force”), on the basis that there was a distinction between the use of distraction techniques in STCs and restraint techniques used in prisons.
- The MMPR was produced following an independent review of restraint procedures in secure settings for juveniles, which was conducted following the deaths of two children in STCs during or following physical restraint. It is used in STCs (which accommodate children aged between 12 and 17 years of age) and YOIs (which accommodate children and young people up to the age between 15 and 21 years). The publicly available copy of the MMPR contained extensive redactions, although it indicated the nature of the information which had been removed.
- On 12 July 2012 the Appellant made a request of the Ministry of Justice (“MoJ” asking for a full, unredacted, copy of the MMPR. The MoJ refused, relying on section 31(1)(f) (law enforcement) and section 38(1)(a) and (b) (health and safety) FOIA. The Appellant complained to the Commissioner.
- The MoJ’s case to the Commissioner was that disclosure of the techniques in the MMPR could lead to some young people developing countermeasures to their application and that, since some of the techniques used in the MMPR were also used in adult prisons, countermeasures could also be developed by adult prisoners. The Appellant had disputed the MoJ’s assertions, in particular that there was a risk of young people developing countermeasures. She said that, although the PCC manual had been in the public domain, there was no evidence of those detained in STCs developing countermeasures. The MoJ commented on this, explaining that there were fundamental differences between the two manuals and between the populations of SCTs and YOIs.
- The Commissioner accepted the case put by the MoJ and decided that the information was likely to prejudice the maintenance of security and good order in YOIs and adult prisons. He considered the public interest arguments for and against disclosure and decided that on balance the public interest favoured withholding the information. As a result he did not need to consider section 38, and that has not been in issue in the proceedings before the First-tier Tribunal or the Upper Tribunal.
- Before the First-tier Tribunal the Appellant did not challenge the Commissioner’s decision that section 31(1)(f) was engaged, but challenged his conclusion as to the public interest. The Appellant provided a witness statement in which she expressed her concerns about the risks of restraint, concerns about the deliberate infliction of pain on children and the importance of openness and transparency. She adduced three witness statements from individuals who were knowledgeable in issues relating to the detention of children and which explained the basis of their opinions, which were shared by other individuals and organisations concerned with the rights of detained children, that the MMPR should be fully disclosed. They raised a range of issues including the risks to children arising from secrecy and associated abuse of power, the vulnerability of detained children, the need for openness to enable effective monitoring and review of incidents, and that it was highly unlikely that detained children would use the manual to subvert discipline.
- In its reasons the First-tier Tribunal summarised the respective positions of the Appellant, the MoJ and the Commissioner and also summarised the evidence of the Appellant and each of her witnesses. The tribunal’s conclusions were as follows:
‘17. The Tribunal noted the considerable amount of information which had been placed in the public domain about MMPR. The online (redacted) version is 154 pages long; redactions occur on approximately 65 pages. For each redaction, this version sets out an indication of the nature of the information which has been removed For example on page 27 “1.4.2 Inverted wrist hold – thumb only” the first redaction has been replaced by the text:-
“This sentence has been redacted. It describes how members of staff will take hold and control the young person’s arm, hand and thumb without applying undue pressure or pain when employing the inverted wrist hold.”
18. The text of the manual then continues with the sentence:-
“It must be noted that the technique applied in this format may raise the risk of fracture dislocation and ligament tendon damage to the thumb”
19. Throughout the document as published there are similar warnings; at page 55 (“2.8 Thumb flexion prone, supine and on side”):-
“However, the use of a pain inducing technique may be justifiable if that is the only viable and practical way of dealing with a violent incident which poses an immediate risk of serious physical harm to the young person, other young persons or staff.”
20. The Tribunal considered that given the extent and detail of what is already in the public domain the benefit in terms of transparency and of public confidence in the lawfulness and humanity of the system was limited. It noted the extent of supervision of the detention of young people and the need for recording of incidents. The Tribunal did not consider that the investigation of incidents would be obstructed by the protection of the contents of the MMPR and its non-disclosure to the world at large.
21. It acknowledged that there was some force in the argument that few young people were likely to consult the manual and seek to learn from it how to resist restraint. The Tribunal noted that MMPR had been developed for an older age group than those detained in STCs. The client group within YOIs was older and could demonstrate the capacity for a higher level of dangerous and violent...
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