QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF BP||(CLAIMANT)|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MISS J RICHARDS (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
Crown Copyright ©
MR JUSTICE MOSES:
HISTORY OF SELF-HARM AND SUICIDE
The relevance of this history is as to the appropriateness of his being placed on a segregation unit and, in particular, as to the effect on him of the conditions in which he was detained there. There were three occasions when the procedures designed to care for those who posed a risk of self-harm or suicide were put into place. The procedure is described by William Styles, the Custody Governor, at Warren Hill. At paragraph 38 he describes the procedure known by the name of the relevant self-harm risk form, F20/52SH. Such a form can be opened by any member of staff who has concerns about a trainee. The consequences are that a close watch will be kept on the trainee with regular reviews of his progress.
BREACH OF THE 2000 RULES
As I have said, the first period when he was placed in the segregation unit followed an adjudication on 30th January 2003 after an incident the night before. He pleaded guilty. The adjudication recorded not only the five days removal from his wing but the forfeiture of a number of privileges, including canteen facilities to purchase and use private cash for seven days; an association in the dining/ recreation/entertainment for eight days and loss of the privilege of looking at television for 14 days.
"I had so much time to think I felt I was going a bit mad and that people were out to get me."
And then he describes feeling odd when he was taken back on to his normal unit.
"(1) If he finds an inmate guilty of an offence against discipline the governor may, subject to paragraph (3) and rule 65 impose one or more of the following punishments...
(c) removal for a period not exceeding 21 days from any particular activity or activities of the young offender institution, other than education, training courses, work and physical education in accordance with rules 37, 38, 39, 40 and 41 [my emphasis]; ... (f) in the case of an offence against discipline committed by an inmate who was aged 18 or over at the time of the commission of the offence, other than an inmate who is serving the period of detention and training under a detention and training order pursuant to section 100 of the Powers of Criminal Courts (Sentencing) Act 2000, confinement to a cell or room for a period not exceeding ten days;
(g) removal from his wing or living unit for a period not exceeding 21 days."
"Following the imposition of a punishment of removal from his wing or living unit, an inmate shall be accommodated in a separate part of the young offender institution under such restrictions of earnings and activities as the Secretary of State may direct."
But it is not open to the institution under that provision to deprive a trainee of the right to attend the activities to which reference is made in Rule 61(c). This is made clear by Mr Harvey at paragraph 18 of his statement, in which he refers to the Prison Discipline Manual 1995, which at paragraph 7.31 says:
"... the young offender will take part in normal compulsory regime activities, including work, education, physical education and training, but will be held in a cell or room away from his or her wing or living unit the rest of the time. Governors and controllers must ensure that only the minimum loss of facilities results."
"To involve each young person every day in a variety of activities which are suited to their needs, abilities and potential and which make full and purposeful use of their time.
7.2.2 Mandatory requirements:
(1) the daily routine must provide:
a. at least 10 hours out of cell time, rising to 14 hours as resources allow;
b. six hours purposeful activity."
At 7.5.3, in relation to managing bad behaviour at (iii), it says:
"The traditional concept of 'segregation' plays no part in separating a young person when circumstances recommend. The use of GOAD and cellular confinement, in which exercises is the only 'activity' and when little or nothing is done to address the causes of segregation is inappropriate. While it will be appropriate to remove a young person from taking part in activities with others, it will be an exceptional measure. Furthermore, such separation must be accompanied immediately by work with the young person to enable their return to the full range of daily activities."
"Prisoners at risk of suicide or self-harm must not be routinely held in segregation units."
"If the decision is taken to locate prisoners at risk of self-harm within the segregation unit this must only be for as short a period of time as possible. Throughout the period the prisoner considered at risk of self-harm is held in segregation, they must be subject to regular monitoring by staff."
"... to ensure that:
(i) children in YOIs are treated, both by members of the Prison Service and by fellow inmates, with humanity, with respect for their inherent dignity and personal integrity as human beings, and not in such a way to humiliate or debase them;
(ii)children in YOIs are not subject to torture or to inhuman or degrading treatment or punishment by fellow inmates or to other behaviour by fellow inmates which impacts adversely and disproportionately on their physical or psychological integrity.
(67)Such measures must strike a fair balance between the competing interests of the particular child and the general interests of the community as a whole (including the other inmates of the YOI) but always having regard:
(i) first, to the principle that the best interests of the child are at all times a primary consideration;
(ii)secondly, to the inherent vulnerability of children in a YOI."
Further, at paragraph 68, he said:
"In short, human rights law imposes on the Prison Service enforceable obligations, that is, obligations enforceable by or on behalf of children in YOIs:
(i) To have regard to the 'welfare' principle encapsulated in the UN Convention and the European Charter; and
(ii) to take effective steps to protect children in YOIs from any ill-treatment, whether at the hands of Prison Service staff or of other inmates, of the type which engages either Arts 3 or 8 of the European Convention.
(69) In this connection it is to be borne in mind that, quite apart from any other remedies which there may be arising out of the State's - the Prison Service's - failure to meet its human rights obligations, ss 7 and 8 of the Human Rights Act 1998 enable a victim to bring free-standing action in the High Court."
It is contended that the conditions in which the claimant was kept on the segregation unit amounted to an infringement of his rights enshrined in Article 3. Article 3 of the European Convention on Human Rights provides:
"Prohibition on Torture
No-one shall be subjected to torture or inhuman or degrading treatment or punishment."
The principles to be applied in considering whether the treatment is of sufficient gravity to amount to a breach of Article 3 are by now so well-known as to deter yet further judicial repetition. The principles were yet again set out by Silber J in R (On the application of N) v Secretary of State for the Home Department  EWCH 207 Admin. Particularly of importance are those principles at paragraph 81: (i) the prohibition is absolute; (ii) "ill-treatment" must attain a minimal level of severity, whether the treatment has attained that level depends on all the circumstances of the case such as the nature and context of the treatment, its duration, its physical and mental aspects and, in some circumstances, the sex, age and state of health of the victim; (iii) in determining whether the treatment is degrading within the meaning of Article 3, the court has to have regard to whether its objective is to humiliate and degrade the person concerned. But the absence of such intention does not rule out a violation of Article 3; (vii) deterioration of the mental health of a person is capable of constituting inhuman or degrading treatment; (viii) the test is becoming stricter; (ix) the kinds of ill-treatment falling within the scope of Article 3 are very serious. The Strasbourg case law refers to actual bodily injury or intense physical or mental suffering.
"The imprisonment of criminal offenders is an end in itself. The necessary ingredients of imprisonment provided that they meet the standards considered acceptable at the time are unlikely to amount to inhuman or degrading treatment or punishment under Article 3."
"Right to Respect for Private and Family Life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
The concept of private life is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity ... Article 8 also protects a right to personal development and the right to establish an develop relationships with other human beings and the outside world."
At paragraph 65 the court said the very essence of the Convention is respect for human dignity and human freedom.
"The severity of the adverse effects of the individual's moral or physical integrity will determine whether the treatment is sufficiently serious to fall within the scope of Article 8."
For example in Costello Robert v United Kingdom 19 EHRR 112 which concerned corporal punishment at a private school, the court took the view, whilst not endorsing the beating of that unfortunate child, that the treatment complained of did not entail adverse effects for his physical or moral integrity sufficient to bring the case within the scope of the prohibition contained in Article 8. Similarly, in DG v Ireland  35 EHRR 1153 the placing of the young victim in handcuffs was not sufficient to constitute a breach of Article 8.
"The level of care for young people in the establishment was very high and child protection procedures were a model for the rest of the juvenile estate,"
"There were many aspects of Warren Hill's regime that provided a model for other juvenile establishments."
She spoke of the overall relationship between staff and young prisoners being extremely good. That makes it all the more disappointing that the claimant should have persisted in allegations of a very serious charge under Article 3 of the European Convention on Human Rights. That seems a poor reward for the hard work demonstrated by the independent inspector in relation to staff at that particular institution.
THE THIRD ISSUE
The allegation made in the claimant's skeleton argument is that the defendant failed to investigate or ensure that there was an effective investigation of the claimant's allegations that he was raped by three inmates of the young offender institution at Hunterscombe in breach of Article 3 of the Convention.
"... governors must establish arrangements with the local Area Child Protection Committee (ACPC) for dealing with incidents in which a young person has or may have suffered significant harm."
The ground goes on:
"No joint arrangement with the relevant local authority's Area Child Protection Committee has been established by the defendant and the action taken in response to the harm suffered by the claimant fell well below that required by PSO 4950."