COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE BENNETT
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN DBE
| MRS YVONNE SCHOLES
|- and -
|SECRETARY OF STATE FOR THE
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MR N GARNHAM QC & MS J RICHARDS (instructed by The Treasury Solicitor) for the Respondent
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Lord Justice Pill :
"The pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children's Homes (LASCH)."
The Coroner stated:
"In all the circumstances, and so that it can include Sentencing Policy which is an essential ingredient but outside the scope of the Inquest, I consider that the Review should take the form of a Public Inquiry where all interested parties can make their views known".
By letter of 16 September 2004 the Secretary of State refused the request.
"a) the sentence imposed on Joseph Scholes;
b) the extent to which a lack of resources resulted in Joseph Scholes being allocated to a Young Offender Institution (YOI)"
In a series of cases in the European Court of Human Rights, and in domestic courts, it has been held that the obligation under Article 2 includes an obligation, following a death in custody, to conduct an effective investigation into alleged breaches of the right to life.
"An offender shall serve the period of detention and training under a Detention and Training Order in such secure accommodation as may be determined by the Secretary of State or by such other person as may be authorised by him for that purpose".
The duty to provide the "secure accommodation" is undoubtedly upon the Secretary of State and not upon the judge. Indeed, the statute provides that it is for the Secretary of State to determine in what secure accommodation the offender shall serve the period of detention and training. That accords with well established principles as to the division of powers and responsibilities between the judiciary and the executive.
"Without going behind the sentence Joseph received at this Inquest it does seem to me essential that there is an urgent and comprehensive review of the pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children's Homes. The statistics indicate that more young offenders are being sent to custody without a proportionate increase in Local Authority Secure Units/Secure Children's Homes to accommodate the inevitable increased proportion of those receiving such sentences who are considered to be vulnerable."
"It seemed clear to me that the allocation of disturbed and vulnerable young children (typically 15 and 16 year old boys) should be determined on a needs basis and not a resources basis. This is all the more important if Courts are sentencing such vulnerable and disturbed young offenders in the belief, mistaken or not, that recommendations, such as that contained in the pre-sentence report and endorsed by the Sentencing Judge can be implemented."
In a further letter, the Coroner repeated his concerns "as to the availability and allocation of secure accommodation for vulnerable juvenile offenders such as Joseph".
"Having given proper consideration to the question, the Minister did not consider that a full public inquiry would be the best or most appropriate response. The main reason given by the Coroner for recommending a public inquiry was to enable the sentencing issue to be considered. Clearly, a public inquiry would not be as well placed as the Sentencing Guidelines Council to review sentencing issues. The other matters can most suitably be addressed by the independent review by Mr David Lambert which the Minister has commissioned, and by the Youth Justice Board."
"In fact the new Sentencing Guidelines Council, established by the Government, and which is chaired by the Lord Chief Justice, is currently considering new guidelines on sentencing for robbery. I think it is right for the Council to be the body which addresses the issues arising from Joseph Scholes's sentence, and I am formally asking the Council to do this. I understand why you wanted to recommend a public inquiry to tackle this, but I think that the Council does provide the most appropriate forum.
The operational issues you drew attention to are important and need to be looked into by someone with the necessary expertise to identify the realistic scope for improvement. I am asking David Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to do this. David Lambert conducted the recent inquiry into the death of Toni-Ann Byfield. I enclose a copy of his terms of reference.
The configuration and development of the juvenile secure estate is a longer-term issue, which the Youth Justice Board is addressing as part of its work on a new vision for the future of juvenile custody on which it will be putting proposals to Ministers later this year. We have asked the Board to take full account of the concerns expressed in the verdict of the inquest jury and relayed in your letter."
"He has concluded that the Coroner's concerns about sentencing policy might best be addressed by asking the Sentencing Guidelines Council to review the Joseph Scholes case in the context of its current consideration of guidelines for robbery offences. I am therefore writing to forward that request".
"We recommend that the Government should take the opportunity afforded by the Youth Justice Bill to empower the Youth Justice Board to direct the form of custody of a sentenced child who has been assessed as particularly vulnerable. Such powers must be accompanied by adequate funding for suitable forms of accommodation for vulnerable children, both on remand and following sentence".
"There has never been a public inquiry into the death of a child in custody. We recommend that the Home Secretary order a public inquiry into the death of Joseph Scholes in order that lessons can be fully learnt from the circumstances that led up to his tragic death. We also recommend that local authority secure accommodation should be used wherever possible for children, with use of prison service custody reduced to an absolute minimum."
"The Government agrees the Committee's view that the deaths in custody of juveniles and young people are especially distressing and welcomes the Committee's support for the measures it is taking to minimise the risk of self-injury and suicide amongst this vulnerable age group. The tragic death of Joseph Scholes at Stoke Heath Young Offender Institution on 24 March 2002 was fully investigated by the Prison Service (assisted by an advisory panel made up of independent experts from the Prisons and Probation Ombudsman's office, Social Services and the Youth Justice Board). Additionally Trafford Youth Offending Team undertook a local management review, which fed into a Serious Incident Review conducted by the Youth Justice Board. Trafford Area Child Protection Committee carried out a "Part 8" review under Part 8 of the Department of Health's document "Working Together to Safeguard Children" and Joseph's death was subject to a thorough 10 day inquest before a jury.
The government carefully considered the subsequent recommendation made by Mr J P Ellery, the Coroner of Shropshire (Mid and North Division) that there should be a public inquiry but concluded that this was unlikely to bring to light any additional factors not already uncovered in the earlier investigations. The Government, however, agreed that the Coroner's concerns should be addressed. These fell into three broad categories. These were: the appropriateness of the sentence itself; operational matters such as the effectiveness of pre-sentence and placement procedures; and whether the juvenile secure estate as currently configured is able to provide fully for vulnerable young people."
The Government decided, after seeking comments from Mrs Yvonne Scholes, Joseph's mother, that three different types of response were needed, and took the following action
We referred the circumstances in which Joseph received a custodial sentence on three counts of attempted robbery to the Sentencing Guidelines Council, requesting it to take his case into account in its current work to draw up guidelines on sentencing for robbery,
We appointed David Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to examine the operational issues raised by this case, including through the Coroner's inquest, and
We asked the Youth Justice Board, which was preparing a draft strategy for the future juvenile custodial estate, to take full account of the points made by the Coroner on the adequacy of custodial provision for vulnerable young offenders.
The Government firmly believes that these measures are the most appropriate response to the Coroner's concerns, and are more precisely focused on each type of issue than a public inquiry would have been.
The Government agrees the Committee's view that local authority secure accommodation should be used wherever possible for children, with the use of Prison Service custody reduced to an absolute minimum. The Government uses only local authority secure accommodation and comparable places in secure training centres for children under the age of 15, and for the more vulnerable 15 and 16 year olds. The Government believes that any sort of custody for young people should be a last resort, and that approach is enshrined in legislation (the Powers of Criminal Courts (Sentencing) Act 2000). For those young people whom the courts do send to custody, the Youth Justice Board seeks to make the best possible use of available accommodation, taking full account of age and other factors that contribute to vulnerability. Local authority secure children's homes and secure training centres provide for the youngest trainees. It would not be appropriate for these young people to mix with older juveniles, who are generally placed in a juvenile young offender institution. The most vulnerable 15 and 16 year olds are also held outside young offender institutions. The Youth Justice Board considers that more provision is needed for vulnerable 15 and 16 year old boys, and its recent consultation paper Strategy for the Secure Estate for Juveniles proposes a new form of 'intermediate' accommodation, with smaller-scale units and more intensive staff support for trainees, which would address this need ...
The juvenile secure estate has evolved considerably since it was set up in 2000 and continues to develop. The Government believes the proposals in Strategy for the Secure Estate for Juveniles the consultation period ends on 28 February set a clear direction for the future of the estate."
"The Committee is also extremely concerned at the conditions experienced in detention and that children do not receive adequate protection or help in young offender institutions (for 15 to 17 year olds), noting the very poor staff-child ratio, high levels of violence, bullying, self-harm and suicide, the inadequate rehabilitation opportunities, the solitary confinement in inappropriate conditions for a long time as a disciplinary measure or for protection, and the fact that girls and some boys in prisons are still not separated from adults".
"As far as children are concerned, I was informed that the conditions of their detention have improved somewhat in recent years, with greater investment in Local Authority Secured Children's Homes ('LASH'S') and Secured Training Centres ('STC's') and in the services provided for children detained in Young Offender Institutions ("YOI")."
"The report comments on the risk of self-harm to vulnerable and disturbed young people in custody. The Prison Service and the Youth Justice Board attach the greatest importance to preventing this. A comprehensive review of each establishment was conducted between November and December 2003, under a Steering Group of the Youth Justice Board, Prison Service and Social Services and Prison Inspectorates. It covered measures to address self-harm and suicide, bullying and peer abuse, harm from adults and historic child abuse; monitoring and reporting, management and warning arrangements; and arrangements with local Area Child Protection Committees and local authority services. A new staff training package with an enhanced child protection module has been developed and independent advocacy services now operate in all establishments. The Board has made available funding for 25 local authority staff (in addition to existing Prison Service child protection co-ordinator posts) to undertake duties under the Children Act 1989 in Young Offender Institutions. These are just some of the measures that have been taken to protect vulnerable young people.
The juvenile secure estate has made significant progress over the last five years. No 15 or 16 year old girls are now held in Prison Service accommodation and we are setting up five new special units to accommodate 17 year old girls. But we recognise that there is scope to do more. The Youth Justice Board has published a consultation document outlining its draft Strategy for the Secure Estate for Juveniles. Its proposals include, for example, enhanced provision for vulnerable older boys. The Board is currently considering the comments it has received and will take account of them in finalising its strategy".
"I have to make it clear that there are no plans at this stage, however sympathetic we may be, to hold a public inquiry. The inquest will resume later this month and over 50 witnesses have been called to give evidence. This in itself will be a thorough inquiry providing the opportunity for independent public scrutiny, and it is hoped that many of Mrs Scholes's questions will be answered. The Minister has, however, already given his assurance to Mrs Scholes that there will be a comprehensive summary of the lessons learned by the various agencies involved and that the results will be shared with both her and her MP, Chris Ruane."
"Other improvements have been made to reception processes that focus on identifying vulnerability and there have been measures to improve the healthcare centres. Better child protection arrangements are now in place, including child protection training as a priority, something which I know the noble Lord, Lord Dholakia, is particularly keen to see carried forward."
Q. "Was all necessary information passed on to the relevant authorities."
A. "No. For instance, Dr Fitzpatrick's report should have been sent to all parties."
Q. "Do you think it was appropriate to allocate Joseph to a YOI?"
Q. "Do you consider on the evidence that you have heard that vulnerable children such as Joseph ie. in the 15 to 16 year old male category are likely, unlikely or most unlikely to be allocated to secure local authority units?"
A. "Most unlikely".
Q. "Do you consider any failure of the system to be a gross failure as outlined by the Coroner which clearly and directly led to Joseph's death?"
A. "No. However could we reiterate the unsuitability of the clothing." [Joseph had initially been put in strip clothing].
"87. In my judgment the Inquest conducted by the Coroner into Joseph's case was, as Mr Garnham submitted, a model of what was required to discharge the State's investigative obligation under Article 2. If such needs any confirmation, it is confirmed by the absence of any challenge to it by way of judicial review. The Coroner was right to exclude from the scope of the Inquest the sentencing policy or regime in relation to juveniles and in particular in relation to cases such as Joseph's. Indeed Mr Owen did not suggest the contrary. Furthermore, it is abundantly plain that the whole focus of the Coroner and the various parties was to make certain it did comply with the investigative obligation under Article 2. The contrast with Amin where there was no inquest and with Middleton where there was only a truncated inquest, could not be starker. Further, I am satisfied that the only issue relating to the juvenile estate which was outside the scope of the Inquest was the financial resources available.
88. I accept Mr Garnham's submission that the domestic authorities of Amin, Middleton and the European authorities of Jordan and Taylor support the proposition that inquests are the normal method, absent some quite exceptional set of circumstances, of the State discharging its investigative obligation under Article 2 where there has been a death of a prisoner, whether adult or juvenile, in custody. Furthermore, where an inquest does not, correctly in my judgment, bring within its scope sentencing policy and/or broad issues of government funding or resources, both the domestic and European authorities are to the effect that it is not incumbent upon the State under Article 2 to set up a public inquiry to cover these issues. And that is so whether or not a systemic problem is said to exist in any particular case. Whether the setting up of a public inquiry in the instant case may be said to be desirable is a matter of debate; but it is, in my judgment, not unlawful for the Secretary of State to decline to do so. In my judgment the law as expounded by the House of Lords and the European Court does not support Mr Owen's central submission; indeed it is to the contrary."
" An inquest is the normal method by which the State discharges its Article 2 investigative obligation save where a criminal prosecution intervenes or a public inquiry is ordered in a major accident. In the instant case there was a full and thorough Inquest conducted with Middleton well in mind. The State, in my judgment, has discharged its Articles 2 obligation in the instant case. Sentencing policy and funding for the juvenile estate were outwith its investigative obligations under Article 2."
"The Council's work programme also provides for consideration to be given to the sentencing of youths as a general issue and it is anticipated that the issues arising from the sentencing of vulnerable young people will be considered also under that topic. The Sentencing Advisory Panel will be starting consideration of that issue later this year and we expect that a consultation paper will be published in the spring of 2006.
Anyone may respond to any of the Panel's consultation papers which are published on our website as well as being sent directly to a range of organisations and individuals. I have noted your client's interest and we will endeavour to ensure that you are sent a copy of the consultation paper."
" not sufficient either individually or together or in conjunction with the Inquest to satisfy the State's Article 2 investigative obligation. They are separate investigations. The investigations of the SGC and YJB cannot consider the relationship between sentencing policy and the provision of LASCHs. If "dangerous practices" are to be rectified the relationship between the provision of LASCH's and sentencing policy need to be considered by one single inquiry.
Furthermore, he submitted, there was insufficient public scrutiny of the form of the enquiries of the SGC and YJB and/or the results. Joseph's family would not be able to play an adequate role and they would be treated no differently from other members of the public."
"In my judgment it must be a highly significant factor that Parliament has set up two specialist bodies, the Sentencing Advisory Panel and the SGC, to look at sentencing policy and its guidelines from time to time. Both are completely independent. Although their internal deliberations are, as I understand it, private, nevertheless the results are published and attract close examination, and either approval or fierce criticism. The Draft Guidelines are published specifically to stimulate public debate and to attract constructive comments and criticism. The next of kin are consulted and can express their views. I am sure that, if the claimant chose to take part, which she has not done so far, the Panel and/or the SGC would listen with the very greatest care to her views. She will thus be able to participate in the debate on sentencing policy for young (and vulnerable) offenders. When the final Guidelines are published I have no doubt that in respect of the sentencing of young offenders such as Joseph they will be the subject of intense public scrutiny and debate."
The judge concluded, at paragraph 114, that "in the instant case there has been an Article 2 compliant inquiry either through the Inquest or through a combination of the Inquest and of the inquiries of the SGC and YJB".
"The purposes of such an investigation are clear: to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
"Such investigation must however be by an independent person, and be "effective" to satisfy the relevant duty (Edwards 35 EHRR 487 at paras 69-73). There must be a sufficient element of public scrutiny and the next of kin or the family must be involved to an appropriate extent (Jordan v United Kingdom (2001) 37 EHRR 52)."
"But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. The European Court of Human Rights has interpreted article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases."
6. Question (1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2?
7. The European Court has never expressly ruled what the final product of an official investigation, to satisfy the procedural obligation imposed by article 2 of the Convention, should be. This is because the Court applies principles and does not lay down rules, because the Court pays close attention to the facts of the case before it and because it recognises that different member states seek to discharge their Convention obligations through differing institutions and procedures
8. The Court has recognised (in McCann v United Kingdom 21 EHRR 97, para 146) that its approach to the interpretation of article 2 "must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective." Thus if an official investigation is to meet the state's procedural obligation under article 2 the prescribed procedure must work in practice and must fulfil the purpose for which the investigation is established."
"The European Court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public enquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case."
At paragraph 31, Lord Bingham stated that one of the purposes of the investigation as to ensure that "dangerous practices and procedures are rectified."
"36. This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner."
"In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make."
"But every time one [a suicide] occurs in a prison the effectiveness of the system is called into question. So all the facts surrounding every suicide must be thoroughly, impartially and carefully investigated. The purpose of the investigation is to open up the circumstances of the death to public scrutiny. This ensures that those who were at fault will be made accountable for their actions. But it also has a vital part to play in the correction of mistakes and the search for improvements. There must be a rigorous examination in public of the operation at every level of the systems and procedures which are designed to prevent self-harm and to save lives."
"To sum up, the judicial system required by Art.2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of dangerous activity if and to the extent that this is justified by the findings of the investigation. In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of first, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the state officials or authorities involved in whatever capacity in the chain of events in issue."
"On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts. The Court's task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Art.2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined."
"Accordingly, it cannot be said that the manner in which the Turkish criminal justice system operated in response to the tragedy secured the full accountability of state officials or authorities for their role in it and the effective implementation of provisions of domestic law guaranteeing respect for the right to life, in particular the deterrent function of the criminal law."
It was held that there had been a violation of Article 2. What was in issue, however, was the operation of procedures to enforce the criminal law.
"Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of Article 2 as identified by the European Court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability."
The court stated, at paragraph 108, that there is an important difference, in this context, between cases concerning those who are detained by the State and those who are not.
"The Court agrees that a detailed investigation into policy issues or alleged conspiracies may not be justifiable or necessary. Whether an inquest fails to address necessary factual issues will depend on the particular circumstances of the case. It has not been shown in the present application that the scope of the inquest as conducted so far has prevented any particular matters relevant to the death being examined."
" The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four. The procedural element contained in Article 2 (Art.2) of the Convention however imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commission's opinion, matters for public and political debate which fall outside the scope of Article 2 (Art.2) and the other provisions of the Convention."
Lady Justice Arden :
" ..[T]he function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it "The courts are charged by Parliament with delineating the boundaries of a rights-based democracy" ("Judicial Deference: servility, civility or institutional capacity?"  PL 592, 597). See also Clayton, "Judicial deference and 'democratic dialogue': the legitimacy of judicial intervention under the Human Rights Act 1998"  PL 33."
"The more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution and the less likely it is to be for an appropriate matter for judicial decision. The smaller therefore would be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions."