ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE FOSKETT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SULLIVAN
LADY JUSTICE BLACK
| The Queen (on the application of)
The Children's Rights Alliance for England
|- v -
|The Secretary of State for Justice
|- and -
|(1) G4S Care and Justice Services (UK) Limited
(2) Serco Plc
|- and -
|The Equality and Human Rights Commission
Mr James Strachan (instructed by The Treasury Solicitor) for the The Secretary of State
Mr Jason Beer QC (instructed by DWF Solicitors) for the Interested Parties
Mr Jason Coppel (instructed by EHRC) for the Intervener
Hearing dates: 30 and 31 October 2012
Crown Copyright ©
LORD JUSTICE LAWS:
"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."
In 2008 there were some 272 places in all four STCs and about 250 were filled. It is appropriate to refer to the inmates as trainees.
"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."
Mr Hermer would no doubt also adopt the reference in McGowan (Procurator Fiscal, Edinburgh) v B  1 WLR 3121 and  UKSC 54 (paragraph 68) to "the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings" leading of course, in the case of the trainees, to incarceration in a closed institution.
(2) The Secretary of State's Wrongdoing
"However, a distraction technique used as part of, or as an adjunct to, the restraint of a detainee for GOAD would be unlawful because it would have been used as part of an unlawful restraint procedure."
"As I have said, the position concerning the legality of using restraint on detainees was established clearly from the outset: it was dealt with in the rules to which each STC was subject and provided for expressly in the contracts by which each of the Interested Parties in this application were bound to run the STCs for which each was responsible. It is, however, clear from the evidence... that the practice 'on the ground' for a good number of years was that restraint techniques were used to maintain GOAD in each of the STCs." (Foskett J's emphasis)
And he proceeded to describe the relevant evidence. Purely by way of example, the evidence showed 912 recorded PCC incidents at Hassockfield (whose figures were said to be typical) in the year ending March 2004 (judgment paragraph 46), and 7020 across all four institutions during the period January 2004 to August 2005 (paragraph 64).
"69... The figures were presented in the form of a bar chart... Broadly speaking, looking at, for example, the six-month period from March to August 2004, of the approximately 570 reported instances of restraint at Hassockfield, about 185 were recorded as having been for 'non-compliance'. In the same period for the following year, of the approximately 470 instances of restraint, in the region of 200 were attributed to non-compliance.
70. After the end of 2005, and thus from the beginning of 2006 onwards, the bar charts [sc for Hassockfield STC] were presented in the form of discriminating between 'unacceptable behaviour' (the new expression for 'non-compliance') and 'other' reasons. In the four-month period from January to April 2006 no instances of restraint for 'unacceptable behaviour' were recorded out of the total of 298 instances in total. However, from May onwards this reason was recorded and, by way of example, in May it would seem that exactly half of the 22 instances were attributed to 'unacceptable behaviour' and in June and July the majority of the occasions when restraint was used were so attributed. Over the next four months, proportionately speaking, the use of restraint for 'unacceptable behaviour' was less, but by December and then into the following year for the first five months or so, proportionately the majority of instances were attributed to 'unacceptable behaviour'. From June through to December 2007, the proportion (and indeed the absolute numbers) diminished significantly. In the first three months of 2008 there were some instances recorded, though none in April, May and June of that year. In July 2008 about five occasions out of a total of 50 occasions were attributed to 'unacceptable behaviour'. Thereafter no such instances were recorded."
Later in the judgment:
"76... [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C.
77... [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques... were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose.
78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale..."
"[T]here is no escaping from the conclusion that the 'monitoring' of the STCs by the YJB appointed monitors during the period certainly up to mid-2004 failed to identify and/or act in relation to the unlawful use of force in the way subsequently revealed to have taken place."
(3) The Trainees' Lack of Knowledge
"88... I do not think that there can be any doubt that in the vast majority of cases the detainees made the subject of a restraint technique would simply have accepted it as part and parcel of the routine in an STC. Furthermore, at least during the period with which this case is concerned, it is likely that if a complaint had been made, the substantive answer to it would have been that the officers who used the restraint techniques were justified in using the force considered necessary at the time."
(4) The Secretary of State's Responsibility for the Trainees' Ignorance of their Rights
"Rule 38 was very clear and specific about the circumstances under which PCC could be used. However, the 1994 CJPOA did give this authority to use reasonable force to maintain order and discipline and the advice that the YJB were giving at the time was that reasonable force could be used under those circumstances and that our preference was for PCC to be used in the first instance because staff had been trained in that technique… That was our view at the time. Having said that I would say I think there's some confusion around our view but that's my recollection of how it was".
"During the course of this inspection we became aware that staff remained confused about the basis in which physical intervention is permitted with young people... We were told of occasions when young people had been restrained for failing to comply with instructions rather than because they threatened security or posed a risk to safety as laid down in STC Rules. The YJB Regional Manager and staff told us that although Incident Report Forms giving the reasons for and means of restraint were monitored by managers and submitted to the YJB, there had been no challenges about the grounds used. It is important therefore that effective means of scrutiny are also developed to assure all essential information is gathered and considered. It will be important to define the roles and responsibilities of the STC staff and managers and the YJB in this process."
On 16 November 2005 this was responded to by Mr Peter Mant, Head of STC Contracts at the YJB, who denied that "the YJB was unsure of the position prior to the inspection" or that "staff were confused about the basis on which physical intervention is permitted with young people". He continued:
"The YJB has always been aware that Section 9 of the Criminal Justice and Public Order Act 1994 permits the use of reasonable force to ensure good order and discipline. The fact that staff at Hassockfield used the approved PCC restraint system to enforce good order and discipline indicates that they were equally aware of their powers. The 'confusion' arose over the police decision to arrest two members of Hassockfield staff for using a restraint. It is the police who were confused as to what was or was not permitted under the legislation. It is possible that the CSCI Inspectors were equally confused by this development...
It is detrimental to the reputation of both the YJB and Hassockfield STC to imply that either party was confused as to whether what was being practised was permitted under the law. We will advise Home Office Ministers accordingly...
This whole paragraph [sc. paragraph 4.7 of the draft report] might well be omitted since it is difficult to understand how this is relevant to the report, arising as it does from an apparent misunderstanding of the law by the police."
"During interviews with staff and managers it became clear that they were confused about the basis on which physical intervention is permitted with young people. Following the inspection the YJB provided clarification of this."
"Commenting on a draft of this report, the YJB advised the report does not provide a complete picture with regard to PCC. The Criminal Justice and Public Order Act 1994 (s.9) provides for custody officers to use reasonable force to 'ensure good order and discipline'. This power remains available to Custody Officers even though it is not repeated in the STC rules."
Foskett J cited other materials to like effect. He observed (paragraph 55):
"That there was confused thinking seems to have been acknowledged on behalf of the YJB at the first inquest into Adam Rickwood's death in April/May 2007: see the evidence of Mr Paul Bowers, a senior member of the executive of the YJB and at the time of the inquest, Director of Secure Accommodation, quoted at paragraph 26 in Pounder. It was a matter taken up by the coroner with the Secretary of State thereafter: see paragraph 32 of the judgment in Pounder."
THE COMMON LAW – ACCESS TO JUSTICE
"111. Drawing together the strands that emerge from each of these cases, the central strand being the right of an individual to an effective access to justice, Mr Hermer submits that it is but a small step to conclude that there is an obligation on the part of the Defendant to inform those potentially affected by the unlawful use of force during the relevant period that they may have been so affected." (Foskett J's emphasis)
I have already stated that Mr Hermer was at pains to insist that no "floodgates" effect should be attributed to his argument. He would have the court accept that the case turns entirely on its own facts. But his submission entails a particular (and striking) view of the scope of the common law's insistence on access to justice. It means that at least in some circumstances a potential defendant to a civil suit must declare himself as such. If there is any force in such a proposition, we cannot in my judgment presume that it is uniquely applicable in this case.
"Until the decision in Ex p Salem it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law."
Mr Hermer, and also Mr Coppel for the EHRC, placed considerable emphasis on Anufrijeva. Indeed Mr Coppel went so far as to submit that it offered a close analogy with the present case. I should say at this stage that I do not think it is anything of the sort. The House in Anufrijeva was concerned to require that notice of the fact of a decision was given before the decision could operate to the detriment of affected persons. Here the claim is quite different: Mr Hermer seeks notice not of any fact or event, but of the legal quality of acts done to the trainees. Anufrijeva does not assist him.
"I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty."
I think these observations are especially applicable here.
"On a strict analysis of the authorities as they exist, I do not consider that it can be said that by failing to undertake such a dissemination exercise the Defendant is impeding the access to justice of those potentially affected. By not doing so he may not be inviting them positively to consider accessing justice, but that, as a matter of principle, is something entirely different from putting up an obstacle to accessing justice." (Foskett J's emphasis)
"I do not consider that such a conclusion [sc. that the trainees might never get to know of the legal wrong done to them] can be justified. I say this for two potentially related reasons: first, whilst there is, of course, a law of limitation in the UK, it possesses a degree of flexibility where those who were ignorant of material facts at the time of the unlawful acts may obtain an effective extension of time for seeking redress; second, on the material presented to me there is availability already of information in the public domain about what happened within the STCs during the relevant period and steps could probably be taken even now by those affected if they wished to do so without the need to be told directly about it by the Defendant."
Foskett J gives an account of the material information already in the public domain at paragraphs 124 – 139 (though his distinct treatment of the rationality argument comes later, at paragraphs 199 – 211). His account includes (in no particular order) the report of Messrs Bleetman and Boatman; the Carlile Inquiry report; the report by the Prisons and Probation Ombudsman into Adam Rickwood's death; the first inquest into Adam Rickwood's death; Blake J's judgment in Pounder; the inquest into Gareth Myatt's death; the amended STC Rules; the House of Lords and House of Commons Joint Committee on Human Rights report entitled "The Use of Restraint in Secure Training Centres"; the judgment in C; and the second Adam Rickwood inquest, at which these findings were made:
"Before and at the time of Adam's death, PCC was regularly used at Hassockfield in circumstances not permitted by the contract between the Home Office and Serco, the STC Rules and the Director's Rules.
Before and at the time of Adam's death, [there was] a serious system failure in relation to the use of PCC at Hassockfield, giving rise to an unlawful regime."
"if a child had felt that he or she had been treated wrongly, or was in any way aggrieved with the treatment received (whether or not he or she believed it to be lawful), there would be access to the complaints procedure, the advocacy service, helplines or independent legal advice and/or the police to raise these issues and then to seek redress."
There were some complaints: though a very modest number. Foskett J noted (paragraph 86) that over a two year period at Hassockfield "a little over 2% of the total restraint techniques recorded produced a complaint on the assumption, of course, that the records were accurate".
"If the Claimant's case had rested solely on asserting the Convention rights of former detainees of the four STCs, I would have been obliged not even to consider the merits of the case before me."
"182. It is quite plain that there is no Strasbourg jurisprudence that identifies expressly the kind of positive obligation said to arise in this case, namely, an obligation, as Mr Strachan submits it is, that the State should take steps to contact potential victims having proactively sought to inspect the records of the STCs to identify such victims…
197… [T]he Ullah principle prevents this court from declaring that the kind of relief sought in this case is validly claimed on the basis of Convention rights."
"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."
"...the bottom line of the submission is that these considerations add up to an overwhelming need for the kind of action sought in the claim. He submits that the UNCRC and the comments made in relation to it add to the case under Article 6, and indeed the case under common law, that action of the kind sought is necessary to ensure effective access to justice."
POSTSCRIPT: THE ULLAH PRINCIPLE
"the Ullah principle prevents this court from declaring that the kind of relief sought in this case is validly claimed on the basis of Convention rights."
Lord Justice Sullivan:
Lady Justice Black: