COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
LORD JUSTICE MAURICE KAY and MR JUSTICE BURTON
B e f o r e :
LORD JUSTICE TUCKEY
LORD JUSTICE KEENE
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Miss Nathalie Lieven QC and Miss Sarah-Jane Davies (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Mr Richard Hermer and Miss Carolyn Hamilton on behalf of The Children's Commissioner, intervening by written submissions
Ms Karon Monaghan QC on behalf of The Equality and Human Rights Commission, intervening by written submissions
Hearing dates : 16 and 17 July 2008
Crown Copyright ©
Lord Justice Buxton :
Brief summary of the issues
The rules and Code of Practice
36 (1) Where it appears to be necessary in the interests of preventing him from causing significant harm to himself or to any other person or significant damage to property that a trainee should not associate with other trainees, either generally or for particular purposes, the governor may arrange for the trainee's removal from association accordingly.
(2) A trainee shall not be removed under this rule unless all other appropriate methods of control have been applied without success.
(3) A trainee who is placed in his own room during normal waking hours in accordance with arrangements made under this rule shall …
(c) be released from the room as soon as it is no longer necessary for the purposes mentioned in paragraph (1) above that he be removed from association …
37 (1) An officer in dealing with a trainee shall not use force unnecessarily and, when the application of force to a trainee is necessary, no more force than is necessary shall be used.
(2) No officer shall act deliberately in a manner calculated to provoke a trainee.
38 (1) No trainee shall be physically restrained save where necessary for the purpose of preventing him from
(a) escaping from custody;
(b) injuring himself or others;
(c) damaging property; or
(d) inciting another trainee to do anything specified in paragraph (b) or (c) above,
and then only where no alternative method of preventing the event specified in any of paragraphs (a) to (d) above is available.
(2)No trainee shall be physically restrained under this rule except in accordance with methods approved by the Secretary of State and by an officer who has undergone a course of training which is so approved.
10. A system for restrictive physical intervention
10.1 Only staff who are properly trained and competent to use restrictive physical interventions should undertake them.
10.2 Restrictive physical interventions must only be used as the result of a risk assessment.
10.3 They must be mindful of the particular needs and circumstances of the child or young person being restrained (for example, medical conditions or pregnancy).
10.4 Restrictive physical interventions must not be used as a punishment, or merely to secure compliance with staff instructions.
10.5 Any intervention must be in compliance with the relevant rules and regulations for the establishment, and carried out in accordance with methods in which the member of staff has received training.
10.6 Restrictive physical interventions must only be used as a last resort, when there is no alternative available or other options have been exhausted.
10.7 Methods of restrictive physical intervention that cause deliberate pain must only be used in exceptional circumstances.
10.8 Restrictive physical interventions must be carried out with the minimum force, and for the shortest possible period of time.
10.9 The degree of physical intervention must be proportionate to the assessed risk.
10.10 Every effort must be made to ensure that other staff are present before the intervention occurs.
Preliminary: varieties of PCC
…are designed for use in dangerous or violent situations where a person is at serious risk of injury. Distraction techniques inflict a momentary burst of pain to the nose, rib or thumb to distract a young person who presents a danger to him/herself or others.
After criticism of its effectiveness, the nose distraction technique was withdrawn by the Secretary of State in December 2007.
The inquests and their aftermath
Adam Rickwood was a model trainee and…the incident just prior to his death was his first episode of non-compliance and his first experience of being restrained. He was reported to have acted aggressively thereby evoking the ultimate restraint response. However, there was some video evidence that [sic] suggesting he did not respond in an overly aggressive manner.
And in their conclusions, at § 15.1 of the report, the SCRP said:
On the evidence available to the SCRP, it is probable that AR should not have been restrained. It is improbable that it was necessary for the purpose of preventing him from doing any of the things specified in rule 38….The SCRP is concerned about the use of the "nose distraction" technique, particularly within a system which purports not to rely on pain compliance.
The inquiry also considered that what had been done was not in accordance with directions set out in the YJB Physical Control in Care Training Manual. I shall have to say more about this Manual in due course.
Physical force will not be used at the Secure Training Centre on any Trainee for any other purpose nor will it be used on any Trainee simply to secure compliance with staff instructions.
My position at the inquest into the death of Adam Rickwood was that the use of reasonable force to ensure compliance with instructions was lawful. Alternatively, Rules 36 and 38 of the STC were ultra vires the primary legislation, namely Section 9 of the Criminal Justice and Public Order Act 1994. I believed that both Rules 36 and 38 severely restricted the ability of Care Officers to maintain good order and discipline. I also believed that the primary legislation conferred to duty to ensure good order and discipline in an STC and gave power to use reasonable force to ensure good order and discipline.
According to Mr Wilson-Smith, that same view of the legislation was urged on the coroner by leading counsel instructed by Serco Home Affairs.
The legal position is that the STC rules describe the only circumstances in which the powers provided for in section 9 of the Criminal Justice and Public Order Act 1994 can be used by officers in carrying out their duties.
This means that restraint can only be lawfully used in the circumstances described in rule 38 of the STC rules. This position reflects the terms and conditions of the contract as set out in Schedule D, M5. The YJB will be monitoring STCs closely to ensure compliance with the STC rules and with the contract in this regard.
I want to reassure you that the YJB has been working closely with the Ministry of Justice and previously the Home Office to amend the STC Rules in line with previous consultation with yourselves. I am advised that changes are imminent. In the meantime, it is your responsibility to ensure that the use of force within your establishment is being carried out lawfully.
Changes were indeed imminent, the Amendment Rules being laid before Parliament three weeks after the YJB's letter.
The need for PCC to ensure GOAD
I identified myself with the submissions made on behalf of Serco Home Affairs to the effect that the evidence heard at the inquest into the death of Adam Rickwood by Care Officers, Trainers and Managers served only to underline the fact that, stripped of the power to tell young people to go to their rooms/move to another part of the Centre and of the corresponding power to use force as a last resort, STC's would potentially descend into anarchy. Moreover the staff would lose control and the underlying aims of the Act would not be able to be achieved. I genuinely believed that Centres would have to close. That remains my firm view today.
That is indeed a strong statement, that demands a number of comments.
Operational advice is that the use of physical restraint [to ensure GOAD] is essential to allow for the safe operation of secure training centres and accordingly we have decided that the appropraite [sic] changes to the 1998 Rules are required immediately. …..[7.4] Good order and discipline are essential if any custodial establishment is to be run safely. Physical restraint of young people in custody should be used only as the last resort, but there can be occasions where lack of a clear power to secure compliance with instructions may put the safety of the establishment as a whole at risk or at least make its running extremely difficult. Without the powers that the [Amendment Rules] prescribe, it would not be possible to ensure that centres continue to operate in the orderly way that is necessary if safety is to be maintained.
The Secretary of State envisages changes in the regime
A comparison between STCs and LASCHs
STCs exist alongside Secure Children's Homes run by local authority social services departments (LASCHs). According to the YJB, LASCHs
… focus on attending to the physical, emotional and behavioural needs of the young people they accommodate … [they] provide young people with support tailored to their individual needs. To achieve this, they have a high ratio of staff to young people and are generally small facilities, ranging in size from 6 to 40 beds. [They] are generally used to accommodate young offenders aged 12 to 14, girls up to the age of 16 and 15 to 16 year old boys who are assessed as vulnerable.
If one takes, for example, a 15 or 16 year old vulnerable male, he could be detained in a STC or a LASCH, the decision resting as much on matters of geography and place availability as on anything else. LASCHs are governed by different primary and secondary legislation. Pursuant to powers conferred upon him by the Care Standards Act 2000, the Secretary of State has made the Children's Homes Regulations 2001. These Regulations, and in particular Regulation 17 which governs behaviour management, discipline and restraint, are structured differently from the Secure Training Centre Rules, and there is a distinct Good Practice Guidance issued in relation to LASCHs by the Secure Accommodation Network. It is common ground that removal from association and physical restraint purely for GOAD purposes are not permitted under the LASCH regime.
LASCHs provide care for the same groups of young people who may also be placed in [STCs] and in fact STCs are associate members of SAN. By way of example we presently have children in the age range of 12-17 including those charged with serious offences up to and including murder as well as sentenced young people.
Failure to consult, and the appropriate remedy
The failures as found by the Divisional Court
there is something unattractive about the stance of the Secretary of State. It embraces the proposition that the previous use of removal from association and restraint for GOAD purposes was in accordance with Government policy, even if it contravened Rules 36 and 38.
was resolved in a particular, limited way in the 1998 Rules and, in our judgment, it was resolved in broader, less limited ways by the Amendment Rules in 2007. We unhesitatingly characterise that as a significant change of policy and we do not consider that the Secretary of State, if he had applied [his] mind to it, could reasonably have seen it in a different way. For these reasons we conclude that, so far as consultation with the CC is concerned (and we do not feel able to reach the same conclusion about any other potential consultee), the Wednesbury challenge succeeds in substance
The relevant law on relief
… it is not necessarily to be regarded as the normal practice, where delegated legislation is held to be ultra vires, to revoke the instrument, but … the inclination would be the other way, in the absence of special circumstances making it desirable to revoke that instrument … in principle, I treat the matter as one of pure discretion.
The Divisional Court's reasons for not quashing the Amendment Rules
50. In the present case, [counsel] refers to a number of factors which, he submits, militate against the grant of such relief. He places particular reliance on the following: (1) the fact that, unusually in a negative resolution case, there was a substantial, informed debate about the Amendment Rules prior to their coming into force and Parliament was aware of the limited nature of the consultation that had taken place; (2) although the CC and others were denied formal consultation, Parliament was aware that he and they had concerns that were being overridden; and (3) in the event, Lord Carlile did not press his motion to annul the Amendment Rules in the House of Lords because he and others accepted that the Secretary of State has established a wide-ranging review of the issues which is expected to result in a report in April 2008, in the light of which the position will receive further consideration. These three points are all documented in the Hansard report of proceedings in the House of Lords on 18 July 2007, cols 281-311.
51. In our judgment, these are all important considerations. They lead us to the conclusion that it would not be appropriate to quash the Amendment Rules on the application of a claimant who is no longer at risk of action against him for the purpose of ensuring GOAD and in circumstances where the whole issue is receiving active consideration in good faith within a reasonable timescale. That reconsideration enables the legal deficits (failure to consult, in particular, the CC and failure to carry out a race equality impact assessment) to be remedied.
Although the Regulations were subject to annulment by negative resolution of the House of Commons but were not so annulled, Parliament would be concerned only with the objects of the Regulations and would be unaware of any procedural impropriety. It is therefore to courts, by way of judicial review, that recourse must be had to seek a remedy.
Nor is this important constitutional distinction confined to cases where Parliament has simply failed to disapprove subordinate legislation. I venture to cite an observation from Hoffmann La Roche v Secretary of State for Trade  AC 295, one of the fundamental cases on the courts' control of delegated legislation. Lord Cross of Chelsea said at p 372D:
I am not, any more than my noble and learned friend Lord Diplock, prepared to agree with the view apparently expressed by Lord Denning MR that an order made by statutory instrument acquires the status of an Act of Parliament if it is approved by resolutions of both Houses of Parliament.
does not in any way diminish the importance of compliance with s71, not as a rearguard action following a concluded decision but as an essential preliminary to any such decision. Inattention to it is both unlawful and bad government.
I respectfully agree. In the present case, absence of an REIA was the result not of inattention but of a mistake made by the Secretary of State. It was however a mistake that the Divisional Court found very surprising: see § 38 above. In my view it sent out quite the wrong message to public bodies with responsibilities under section 71 to allow that deficit to be cured by a review only undertaken eight months after the Amendment Rules had been laid, and in the face of an adverse court decision; and only completed a year after the Amendment Rules were laid, and four days before the hearing in this court. That process has also produced the result that the REIA needed to come to a particular conclusion in order to preserve regulations that the court has found to have been introduced unlawfully. I do not of course in any way doubt the good faith of the grade seven civil servant who has produced an REIA that demonstrates that PCC is not applied in a discriminatory fashion. But as a matter of principle it cannot be right that a survey that should have been produced to inform the mind of government before it took the decision to introduce the Amendment Rules was only produced in order to attempt to validate the decision that had already been taken.
Should this court now quash the Amendment Rules?
The state's obligations under article 3 to trainees in STCs.
The acts complained of were such as to arouse in the applicant feelings of fear, anguish and inferiority capable of humiliating and debasing him and possibly breaking his physical and moral resistance. The Court therefore finds elements which are sufficiently serious to render such treatment inhuman and degrading. In any event, the Court reiterates that, in respect of a person deprived of his liberty, resort to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3….The Court considers that….the "minimum severity" required for the application of Article 3 [is], in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the age and state of health of the victim, etc.
The state's obligations to children
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.
And in her equally important speech in R(Williamson) v Secretary of State for Education  2 AC 246 - Baroness Hale of Richmond emphasised that UN Committee on the Rights of the Child is
Charged with monitoring our compliance with the obligations which we have undertaken to respect the rights of children…the authoritative international view of what the UN convention requires.
The nature of PCC viewed in relation to article 3
The Prison Service Training Manual on PCC notes the potential dangers associated with the use of restraint:
A number of adverse effects are possible following the application of restraints. These include 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.
A degree of positional asphyxia can result from any restraint position in which there is restriction of the neck, chest wall or diaphragm, particularly in those where the head is forced downward towards the knees. Restraints where the subject is seated require particular caution.
Article 3: the test of risk
The trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3…..the policy must be considered as a whole…the policy, properly operated, will be sufficient to prevent any possible breach of the article 3 rights of a patient secluded for more than seven days and..there is not evidence to support the proposition that the frequency of medical review provided in the policy risks any breach of those rights
And Lord Bingham went on to set out in detail the elements in the policy that safeguarded against breaches of article 3 even in the absence of medical reviews.
The risk in this case
Strict necessity for PCC in cases of GOAD
Prescribed by law
Necessary in a democratic society
Lord Justice Tuckey :
Lord Justice Keene :