England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20th January 2004

Mr Justice Hooper:

Introduction

1. This application for judicial review concerns the lawfulness of the detention of the claimant when, whilst aged 16 years, she was detained from 28 June 2002 until 13 May 2003 at H.M.P Eastwood Park.
2. It is submitted on her behalf that the defendant acted unlawfully in ordering her detention in Eastwood Park and that it is unlawful for the defendant in exercising his powers under section 92 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act") to place any under 18 year old in prison with prisoners over the age of 18 years (except in exceptional circumstances). It is submitted that the defendant acted unlawfully in that he acted contrary to his own policy as set out in PSO 4960 and contrary to Article 8 of the ECHR, Article 37(c) of the United Nations Convention on the Rights of the Child (UNCRC) and Article 10(c) of the International Covenant on Civil and Political Rights. It was agreed by Mr Wise that the latter Convention could be disregarded for the purposes of this case in the light of the UNCRC.
3. The relief sought is a declaration that the claimant's detention was therefore unlawful and, if successful and at a separate hearing, damages.
4. Eastwood Park is a prison located between Bristol and Gloucester designed to hold 328 female prisoners. It holds prisoners who are 21 and over and, like three other women's prisons, also holds prisoners (or detainees as they are also called) under the age of 21 whose residential accommodation is in a separate wing. At Eastwood Park that is D wing. The accommodation on D wing, where the claimant's cell was located, is designated as part of a young offender institution ("YOI") within the prison estate and thus, the Governor Mr Timothy Beetson states (2/406) "accordingly not part of the adult prison (see sections 33 and 43(5) of the Prison Act 1952)". Section 33 gives the Secretary of State the power to and section 43(5) sets out that all but two provisions of the Prison Act "subject to such adaptations and modifications as may be specified in rules made by the Secretary of State". The regime for YOIs is regulated by the Young Offender Institution Rules 2000 (SI 2003/2271), which make some special provision for juveniles, and not by the Prison Rules (SI 1999/728).
5. It houses prisoners on remand, prisoners sentenced to detention and training orders ("DTOs") and those, like the claimant, transferred under section 92. Those aged under 18 normally have their own cells on the wing (see 2/406). Whilst on the wing and not in their cells those under 18 mix with the over 18s (see the daily routine at 2/410). Whilst taking part in education classes, skills training and courses those under 18 may mix with fellow prisoners of any age.
6. By virtue of section 43 of the Prison Act 1952, the Secretary of State may provide, amongst other things: "young offender institutions, that is to say places for the detention of offenders sentenced to detention in a young offender institution or to custody for life". Although the claimant fell into neither of these categories she was ordered by the defendant to be detained in HM Prison Eastwood Park (RLM 2/26) and allocated to D wing.
7. The application for judicial review is supported by Frances Crook, the Director of the Howard League for Penal Reform and the application is brought on the claimant's behalf by Mr Chris Callender, a solicitor with the Law Department of the Howard League.
8. The matter was listed before me for hearing on 19-20 June with a time estimate of two days including delivery of the judgment. That turned out to be an unrealistic time limit and, in any event, the Secretary of State understandably wished to rely upon further evidence, which was served in mid-July. The case was due to be heard in July but the hearing date was vacated following an application by the defendant. The hearing was then listed for 26 and 29^th September 2003.

Chronology

9. The claimant was born on 3 June 1986 and was aged 15 when, on 9 November 2001 at the age of 15 she committed a very serious aggravated burglary (a summary of the evidence may be found at 2/513) with a 19 year old male. Three days later she was remanded in custody to Stamford House, a local authority secure children's home ("LASCH") run by Hammersmith and Fulham Borough Council. LASCHs were formally known as local authority secure units (LASUs). There are just over 300 "beds" in some 30 local authority run LASCHs available for those under 18 sentenced to some form of custodial detention or remanded in custody.
10. The claimant had a previous conviction for burglary committed at the age of 14 and a very disturbed background (see Pre-sentence Report prepared in July 2001, 2/508). On 11 February 2002, the claimant was sentenced to three years' detention under section 91 of the 2000 Act.
11. Section 91 provides that where a person aged under 18 is convicted on indictment of certain serious offences, aggravated burglary being one of them, then:-

"(3) If the court is of the opinion that none of the other methods in which the case may legally be dealt with are suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in their sentence."

12. The predecessor to this section was section 53 of the Children and Young Persons Act 1933 ("CYPA 1933"). Section 91 needs to be read against the background of sections 89 and 92. Section 89 provides in sub-section (1) that no court shall pass a sentence of imprisonment on a person for an offence if he is aged under 21 when convicted of the offence. Sub-section (2) permits the committal to prison of a person aged under 21 who is being detained in custody pending his trial or sentence.
13. Section 92 provides that a person sentenced to be detained under sections 90 or 91:

"(1) Shall be liable to be detained in such place and under such conditions:

a) as the Secretary of State may direct; or

b) as the Secretary of State may arrange with any person."

14. Section 90 provides that, where a person convicted of murder is under 18 at the time the offence was committed, the court shall sentence him to be detained during Her Majesty's Pleasure.
15. Sub-section (2) of section 92 provides that a person detained pursuant to sub-section 1 "shall be deemed to be in legal custody".
16. Sub-section (3) provides that a direction may be made "under the hand of an authorised officer".
17. In the case of the claimant, for the purposes of section 92, the "authorised officer" was Mr Ronald Le Maréchal (see RLM 2 at 26). He is the head of the Children Services Unit which is part of the juvenile group within H.M. Prison Service Headquarters. He is in charge of what is called the "section 92/53 Unit" in the Juvenile Group and has been so since January of 1997. The figure "92" in the name of the group refers to section 92 of the 2000 Act and the figure "53" refers to section 53 in the CYPA 1933.
18. In anticipation that the claimant might be found guilty at her trial and sentenced to a period of detention pursuant to section 91, the Section 92/53 Unit had to consider what would be an appropriate placement for her. It was decided that if a section 91 order were to be imposed, the claimant should remain in a LASCH. Amongst the material taken into account was a document written by a Youth Offending Team ('YOT') worker, indicating that the claimant was vulnerable. (See paragraph 9 of the first statement of Mr Le Maréchal, 2/502). A note on the file of 92/53 Unit states: "Because of her age/gender, she will automatically go to a LASU" (2/519).
19. Following her sentence on 11^th February 2002 and pursuant to section 92 of the 2000 Act, the claimant, still 15, was returned to Stamford House. A detailed letter was sent to the Centre Manager, Mr Tony Goring (see 2/517). The letter set out various requirements and stated that the Youth Justice Board would meet the cost of the placement. The YJB was established by section 41 of the Crime and Disorder Act 1998. On 20 April 2000 it took over responsibility for the juvenile secure estate (see section 41(5)(i) of the 1998 Act and the Youth Justice Board for England and Wales Order 2000 (SI 2000/1160)). In this capacity, the YJB is responsible for the commissioning and purchasing of places across the juvenile estate, of which the Prison Service is the largest supplier with about 2,900 places.
20. Shortly after being sentenced on 11 February 2002, the claimant's case was reviewed by the Section 92/53 Unit. The following note dated 26 February 2002 appears in the records based, according to Mr Le Maréchal, on information received from Stamford House:-

"Objectives set include work around victim awareness, anti-social behaviour, drug misuse and social, family and pier relationships. Although on admission [DT] managed to attain level 3 on the Unit's incentive scheme, her behaviour declined dramatically and she was placed on a behaviour management course, to address her bullying and attitude towards staff. In view of the need for secure beds in the local authority system, it is my recommendation that [DT] be considered for a transfer into the penal estate. She does not display any aspects of vulnerability and will be 16 years of age in June 2002." (2/503 and 523, underlining added).

21. On 22 April a recommendation was made by a member of the unit to Mr Tanner that DT be considered for a transfer into the penal estate for the reasons contained in the 26 February note. Mr Tanner agreed and Mr Le Maréchal wrote a letter on that same date to Stamford House. The letter related to two detainees at Stamford House, the claimant and one other, a male. I set out the letter, making the necessary changes to conceal the identity of both the claimant and the other detainee whom I shall call X. The letter reads (2/526):

"I am writing to alert you to the possibility that the above named Section 91 detainees may need to be transferred to the Prison Service juvenile estate at short notice over the coming weeks."

22. At this time the claimant was still only 15. The letter continues:

"The background to this is the decision, announced by the Home Secretary last week, to implement the legal provision giving courts the discretion to order secure remands in respect of some 12 - 14 years olds. As part of its strategy for dealing with the consequential secure accommodation implications I have been asked to consider whether any Section 91 detainees who are aged 15 – 17 and are currently held in the LASUs and STC [secure training centres holding those sentenced to DTOs] might appropriately be moved to the prison service, where additional places are to be made available.

Needless to say, all the Section 90/91 offenders aged 15 and above who are held in LASUs/STCs have been there for a good reason, otherwise I would have already placed them in Prison Service custody. At the same time, the justification for a LASU/STC placement is stronger in some cases than in others and I must now be more selective. For example some have been there simply because they were under 15 but have now reached their 15^th birthday. I have therefore looked carefully at each individual case taking account of age, nature of offence, sentence length, education and other needs and all other relevant factors, and have concluded that the above named are among those who could more appropriately be moved to the prison Services should the need arise.

I hope, of course, that I will not have to direct an early move, but, if I do, you may be assured that I will give very careful thought to the choice of destination so that [X], and [the claimant], the young people concerned are, as far as possible, placed in an environment that provides continuity and enables them to build on progress made.

I am also looking at other individual cases and we may have to add others to those who may have to move on depending on pressure within the local authority Estate.

Finally, if there are compelling reasons why you think an individual should not move can you please let me know these reasons by 12 noon on 23^rd April 2002." (Underlining added)

23. It is Mr Wise's submission that the letter, and in particular the underlined passages, show a presumption in favour of prison for those aged 15-17. Absent a "good reason" or "compelling reasons", they will be sent to a prison, so he submits.
24. Mr Le Maréchal explains the pressures on the then available accommodation for the secure detention of those under 18. He writes (paragraph 8 of his witness statement, 2/501):-

"8. Whilst placements are reviewed whenever there is a significant change in the circumstances of an individual detainee, the practice has grown up of the Section 92/53 Unit and the YJB reviewing all placements on a quarterly basis to ascertain whether or not it is possible and appropriate to transfer detainees to Prison Service accommodation in order to free up accommodation in LASCHs and STCs for more vulnerable detainees. Such reviews may exceptionally also be undertaken at other times in response to immediate pressures in the juvenile estate, although this has only happened formally on one occasion, namely following the announcement by the Secretary of State in April 2002 of the implementation of the legal provisions giving courts the discretion to order secure remands of some 12-14 years olds. At this time there was already pressure on accommodation because of the street crime initiative. This was the reason why the claimant's case was exceptionally reviewed in April 2002 following a normal quarterly review in February 2002. The claimant's case would have been reviewed again in any event in May 2002".

25. As Mr Kovats said in the course of argument the decision to move the claimant to the prison service juvenile estate was "driven by shortage of space in LASCHs and STCs".
26. Further confirmation of this comes from part of paragraph 15 and from 26 of the witness statement of Frances Crook (1/115):

"15. ... On review of the statistical information available to me it seems clear that the secure accommodation places are being taken up by younger children and forcing the Home Secretary to place 15, 16 and 17 year old girls in prison service accommodation contrary to his policy.

26. In light of the information available it seems that the increase of custodial sentences and custodial remands for children 15 years and under has caused an increase in demand for beds in local authority secure children's homes. As a result there has been a decline in the supply of beds for children, and in particular girls, aged 15-17 years. In the circumstances the prison service and YJB have made placement decisions on the basis of the supply of beds, rather than the individual needs of the child, to increasingly accommodate 16 and 17 year old girls in prison service accommodation."

27. On 23 April 2002 Mr Tony Goring, the Centre Manager wrote to Mr Le Maréchal confirming that there were no known reasons why X and the claimant could not be removed from Stamford House "under the circumstances you describe, should this become necessary".
28. On 24 April the claimant's Youth Offending Officer, Frances Jones, based with the Worcestershire & Herefordshire YOT wrote a note to Sharon Cummings of the Section 92/53 unit in which she said that she understood (the defendant says misunderstood) from speaking to the manager of Stamford House that, unless there were obvious welfare issues or concerns, older people would automatically be relocated to YOI (2/529). In her note, she asked that the claimant should remain at Stamford House until she had sat the five examinations for which she was registered. Once she had completed her exams, "I think [the claimant] would benefit from a transfer". The note continues:

"[The claimant's] parents have relocated to Newquay in Cornwall. They have repeatedly requested that their daughter be transferred to a custodial placement geographically closer to themselves, in order to facilitate more frequent physical contact between [D] and themselves. However [the claimant's] parents do not want her education and in particular any possibility of her being able to achieve any academic qualifications to be affected. Once more I feel that I need to emphasise the fact that any transfer of [the claimant] to another custodial placement before she has sat her exams would have a severely negative effect upon her welfare."

29. In her witness statement, Frances Jones describes meeting the claimant on 23 April and refers to the fact that "the claimant reiterated her desire to leave Stamford House, although on this occasion her immediate concern was the difficulties she was then experiencing with her schoolwork." After discussing the matter with her the claimant agreed to stay at Stamford House until she had taken her exams and it was for that reason that she wrote the note of 24 April.
30. Frances Jones further states that on 22 May 2003 she reviewed the file and noted from the assessment and review prepared by Stamford House staff that the claimant was "being disruptive at the unit, by displaying manipulative and overt bullying towards her peers". Frances Jones writes in her witness statement:

"In the light of this, the claimant's wish to leave Stafford House once examinations were completed and her father's desire that she be placed in an establishment, would facilitate visits, I made enquiries about alternative establishments. I concluded that the obvious alternatives were the Atkins Unit [in fact the Atkinson Unit], a local authority secure children's home in Exeter, or the young offender wing at H.M.P. YOI, Eastwood Park, near Bristol."

31. There are at the present time three secure training centres, privately run, which may accommodate girls below the age of 18. The three secure training centres are located geographically a long way from Cornwall where the claimant's parents had moved.
32. In her assessment of the claimant prepared at about this time (2/546), Frances Jones described the claimant additionally as although not appearing vulnerable: "She gravitates towards persons with a stronger presence/character than her own, this in turn leaves her exposed to vulnerable to risky situations (sic)". She describes the claimant as having low self-esteem "which leaves her open to the suggestions of others." Mr Wise relies on this and similar assessments to show the dangers of placing the claimant in prison with those aged over 18 and submits that in the defendant's contemporaneous records and in the witness statements, her vulnerability has been underestimated. He points to the Eastwood Park induction record, where it states on information from Stanford House apparently: "Vulnerable- does gravitate towards strong personalities – liable to be led astray". However, there is a tick in the Not vulnerable box (2/438). A similar comment can be found in a YJB document dated 26 February 2002 (2/470).
33. The assessment continues:-

"However, if placed in a situation with others whom she views as a less dominant character, she then takes the dominant role using the characteristics which she has picked up from others. This has been observed by staff and noted. Thus deterioration on the Unit and being placed on a behavioural management programme."

34. On 23 May 2002 Frances Jones wrote again to Sharon Cummings. The note (2/531) reads in part:

"[The claimant] is due for release on 11 May 2003. She then plans to return to live with her parents who recently moved to Newquay in Cornwall. At [the claimant's] last review, it was decided that once [she] completes her GCSE's (her final exam is on 25 June 2002) we would request that she be transferred to a custodial unit nearer to her parents as they are finding it extremely difficult to visit her regularly.

I understand there is a YOI facility in Bristol and the Atkins Secure Unit in Exeter which both accept females. [The claimant's] parents have stated that they would find it a lot easier to visit either facility.

In view of the above information, I would like to formally request the transfer of [the claimant] to either facility after 25 June 2002."

35. On 28^th May commenting on the memorandum from Frances Jones and the reference to a transfer to the Atkinson Unit, one of the members of Mr Le Maréchal's group wrote that such a move was "obviously not appropriate". In response to that note Mr Janner confirmed "there is no question of a transfer to the Atkinson Unit. So far as I am aware, [the claimant] will transfer to the prison estate as soon as possible after 25 June". (2/522). Mr Wise relies on this summary and unreasoned dismissal of the Atkinson Unit alternative. I set out in paragraphs 38 and 40 below the explanation givens by Mr Le Maréchal now in his witness statement for rejecting the Atkinson Unit.
36. Frances Jones met the claimant again on 20^th June and "she told me that she was quite looking forward to the move as she was by then the oldest female at Stamford House, there was an 18-month gap between the claimant and the next youngest resident, and she was finding the regime increasingly boring." (2/540). According to the claimant, when she arrived at Stamford House, "there were a few older girls including a 17 year old and one who had just turned 18." Residents of a similar age group had later been released or moved out (see 1/106). According to Frances Jones, the claimant was aware that she was going to be moved to Eastwood Park but neither she nor her father expressed any concerns about it.
37. On 25 June 2002, the Mr Le Maréchal signed an order directing the claimant's removal to "Her Majesty's Prison, Eastwood Park". (RLM 2/26)
38. The claimant was moved there on 28 June. She states that she had no idea that "they were thinking of sending me to a prison". She says that she was told on 24 June that she was going to Eastwood Park (1/105-106). She first realised that she was going into a prison when she saw the high fences and gates and met officers dressed in uniform, following which she was strip-searched and put in Delta Wing (1/103).
39. As to the move Mr Le Maréchal writes in his first witness statement (paragraph 14, 2/504):-

"14. The Section 92/53 Unit noted that the claimant would be 16 on completion of her exams. She would be nearly 17 on completion of the custodial part of her sentence. There was evidence that she had bullied other children, but little evidence that she was herself vulnerable. In all the circumstances, we opted for Eastwood Park, rather than the Atkinson Secure Unit. Whilst I recall that the pressure on juvenile secure accommodation had eased a little by that time, even if such pressure had not existed at all, I would have questioned the wisdom of leaving the claimant in an environment where children below her own age were accommodated, and where any bullying by the claimant could have been detrimental to their safety and well being. This was the reason why we concluded that the Atkinson Secure unit was not appropriate. Having therefore considered carefully all the circumstances of the case, the movement order was signed on 25 June 2002 [RLM 1 page 25]. The claimant arrived at Eastwood Park on 28 June 2002. I am satisfied that a move from Stamford House was not contrary to claimant's best interests particularly in the light of the closer proximity to her parents".

40. In a second statement dated 20 June 2003, Mr Le Maréchal refers to other documents emanating from the YJB and Stamford House which he said the Unit would have taken into account. Mr Kovats accepted that Mr Le Maréchal could not say whether any individual documents were or were not taken into account, only that they were on the file.
41. Mr Le Maréchal's second statement continues:

"4. I would also add that the whole purpose in my writing to Stamford House on 22 April 2002 [RLM 1 page 19 to 20] was to elicit whether there was any reason why the claimant should not be moved to prison service accommodation. I would stress in this respect that, so far as vulnerability of a detainee or other special circumstances are concerned, the Section 92/53 Unit relies heavily on information provided by the current (and, if relevant, previous) secure establishment and the detainee's Yot worker. In the period of nearly 6 years during which I have been responsible for placement and transfer decisions for section 92/53 detainees, it has very rarely been the case that both the establishment and the Yot worker have taken the view at the outset that there are no reasons why a transfer to prison service accommodation should not proceed. Had there been any concerns that the clamant was vulnerable or would be at risk or would be unable to cope in a Prison Service establishment such that a transfer to Prison Service accommodation would be inappropriate for her, Stamford House or the Yot worker would have raised those concerns. In the instant case, however, apart from the Yot worker's request that any transfer should be delayed until after the claimant had finished her GCSE exams, no reasons were put forward as to why a transfer would not be appropriate. Against this background, the claimant appeared to be a particularly suitable candidate for a move in order to ensure that there would be much less risk of her bullying.

5. It has been suggested that I should have considered transferring the claimant to another LASCH. Whilst (assuming a place had been available, whether at the Atkinson Unit or another LASCH) this could (depending on the location of the LASCH) have facilitated family visits, it would not have freed up a space in the local authority secure estate for a more vulnerable girl, nor would it have addressed my concerns about bullying (paragraph 14 of my first statement refers).

6. In reaching the decision to transfer the claimant, I was conscious of not only her best interests but also those of other detainees and, in particular, the best interests of the much younger detainees held at Stamford House (and any other LASCH). Such detainees can be as young as 10; although there are considerably more 12 and13 years olds. The claimant increasingly appeared to have little in common with those she was detained with and this may well have led to the bullying and disruptive behaviour. In the circumstances it also appeared to be in the best interests of the claimant to move from Stamford house to a more mature environment which was more convenient for family visits."

42. In his third statement Mr Le Maréchal states that he applied the same criteria as set out in Mr Minchin's second statement and used by the YJB to conduct the same exercise in relation to those serving a DTO as Mr Le Maréchal conducted in relation to section 90/91 detainees. Mr Minchin sets out detailed written criteria (see pages 3, 7 and following of the documents attached to the second statement). Mr Le Maréchal does not mention in his earlier statements that his Unit applied the detailed criteria set out by Mr Minchin. Although the YJB Secure Facilities Placement Guidance to which I refer below states in paragraph 1.19 that the Prison Service will consult with the YJB placement team in making placement decisions (1.19, 2/338), I do not believe that there is any evidence that that occurred in this case.
43. In the acknowledgment of service, the defendant summarised the reasons for the transfer in paragraph 6 (1/43):

"In deciding on the appropriate placement, Juvenile Unit noted that DT would be 16 on completion of her examinations and would be nearly 17 on completion of the custodial part of her sentence. There was evidence that DT had bullied other children, but little evidence that she was herself vulnerable. There has never been any evidence of self-harm. In all the circumstances, and bearing in mind the need to free up places in LASUs for high priority cases, juvenile unit decided that DT should be placed in Eastwood Park."

In paragraph 13 it is said that Prison Service Order 4960 (to which I turn later) contemplates that in exceptional circumstances juvenile girls will not be placed in LASUs and that for the reasons set out in paragraph 6: "DT's case is exceptional".

44. Mr Le Maréchal also writes that, after the issue of the judicial review proceedings in March 2003, he decided that to move the claimant from Eastwood Park at that late stage of her period in detention "would have broken continuity and would have been unlikely, in my view, to have been in her best interests" (paragraph 15 of first statement, 2/504-50).

Some figures

45. Mr Le Maréchal in his third statement (paragraph 2 and following) wrote that, during the period April to July 2002, his Unit examined the files of 21 girls aged 15-17 serving sentences under section 90/91 in a LASCH or STC and only 3 were transferred to prison for reasons connected with the pressure on places. By August the pressure on places "had considerably eased" (paragraph 8). Mr Le Maréchal was unable to give the figure for boys.
46. Whereas under section 92 of the 2000 Act it is the Secretary of State who decides where a person sentenced under sections 90 or 91 is detained, in respect of DTOs that decision is made by the Youth Justice Board in accordance with the YJB "Secure Facilities Placement Guidance" (2/333). This document sets out the priorities for places outside the Prison Service (1.15, 2/337) and states that where there is insufficient non-Prison Service accommodation, "difficult decisions about degrees of vulnerability [described as the key factor in 3.02] may have to be taken to achieve the fairest and safest allocation of places" (3.03, 346). The need to achieve a more local placement is also important (4.21, 2/350). Mr Minchin, as Head of Placement at the YJB, describes in his second statement (paragraph 5) being asked in April 2002 by the Head of the Home Office Juvenile Offenders Unit to identify 15-17 year olds serving DTO sentences who could safely be relocated to prison accommodation to free up beds in LASCHs and STCs as it was thought by the Unit "that the courts would make more court ordered secure remands on young persons between 12-15 years as a result of the street crimes initiative and the implementation of section 130 of the Criminal Justice and Police Act 2001: Extention of Criteria for Juvenile Secure Remands." By virtue of section 41 of the Crime and Disorder Act 1998 it is the duty of the Youth Justice Board to secure accommodation for the purpose of detaining persons in respect of whom a detention and training order is made.
47. He describes how the task was approached and carried out. Of the 23 girls aged 15-17, none were transferred, 20 being categorised as difficult to move and 3 impossible. Some of those could not be moved because of insufficient space within the female prison estate. Out of a total of 78 boys, 22 were moved to prison between April and July 2002.
48. Mr Minchin also produced in his second statement figures to show the numbers of under 18s in prison during this period, whether sentenced or on remand. The figures for the April to October periods 2002 show a substantial increase in the number of under 18s in prison from an average over the preceding 9 periods of about 2300, to 2581 in April, 2650 in July and 2704 in October dropping off to 2383 by January 2003 (Chart 4). Of these most are males who are housed in accommodation which is separate from accommodation housing those aged 18 and over. Only a very small proportion are females (Chart 5): 104 in April, 128 in July and 124 in October dropping off to 78 in May 2003 and, I was told, 72 in September 2003. The number of under female under 18s in STCs and LASUs in the period April to October 2002 are for the STCs 17, 18 and 35 and for the LASUs 57, 59 and 72, significantly less than those in prison. From April 2000 until Jan 2002 there was an average of 90 females under 18 in prison against an average of 58 in STCs and LASUs, a figure which has "improved" over the period with the arrival of STCs and more LASCH beds. By January 2002 there were 98 in prison and 68 in STCs and LASCHs. There are currently 3 STCs providing 194 beds for males and females either sentenced to DTOs or under section 90 and 91 or remanded. STCs are privately run establishments managed by the YJB through detailed contracts with independent providers.

Costs

49. In February 2003, the YJB estimated that the annual cost of detaining a juvenile in each of the establishments was:

Young Offender Institution £53,000

Secure Training Centre £159,000

Local Authority Secure Children's Home £164,000

(See witness statement of Caroline Rowe, paragraph 25)

Eastwood Park

50. In February 2002, four months before the claimant was moved there, the HM Inspectorate of Prisons published a very critical report of an unannounced follow up inspection of Eastwood Park on the 1^st and 3^rd October 2001. Mr Le Maréchal makes no reference to the report, albeit that he says in his witness statement that he concluded that the transfer to the prison estate was not contrary to her best interests (see paragraph 41 above).
51. In her preface Anne Owers, Her Majesty's Chief Inspector of Prisons wrote (1/166):-

"This is a very troubling report, of an establishment in crisis and, at the time of the inspection, unable to provide safe, decent and constructive environment for many of the women and girls within it."

52. Among the factors contributing to that, were "the arrival of 15 to 17 year old girls (in spite of commitments to remove that age group from prisons)". The report is in two parts and the first part followed up concerns raised in a previous inspection before Eastwood Park held juveniles. This part showed that Eastwood Park had been unable to achieve 76 of the 112 inspectorate recommendations, and in 55 cases not even partially.

"These unmet recommendations covered some of the most serious areas of concern, going to the heart of the health of the prison: anti-bullying, reception and induction, suicide and self harm strategies, exercise and ………..activity, and health care."

53. The second part of the report, Chapter 3 (1/170) related particularly to the position of 15 to 17 year old girls who were now being placed at Eastwood Park.
54. At the time of the visit in October 53 females under the age of 21 both sentenced and unsentenced were held there. 12 of these were aged under 18, seven sentenced and five unsentenced.

"Their regime differed little from that of those aged over 18 with the exception of two special sessions of gym per week and a life skills class provided by the Education Department."

55. According to the Governor, there are important differences in the regimes for those over 18 on the wing and those under 18 (2/407).
56. The report noted:-

"The small number of girls under 18 meant that they could only realistically be held in the same living unit as those aged 18 to 21. Staff, quite reasonably, felt that it was impossible to introduce some of the regime improvements unless they were to apply to whole population of D Wing." (Paragraph 3.05, 1/171)

Mr Wise points to this consequence of mixing under 18s with over 18s.

57. It was also noted that funding for improvement would be allocated for only 12 months, "because of the intention to remove all girls from the prison system by April 2002" (that is, two months before the claimant arrived).
58. In paragraph 3.06 the Inspectors wrote that they could not find "a distinctive and articulated vision of the intended new regime for girls at Eastwood Park".
59. In paragraph 3.07 the Inspectors state that having met with all 12 girls "it was impossible not to be struck by the profound personality disturbance and mental health problems that many presented and by the inappropriateness of prison, or indeed any other custodial placement for them."
60. Paragraph 3.08 reads:

"The population of those under 18 for whom staff were caring was thus largely transient and unstable in every sense of the word. Of the 12 girls, three were at very serious risk of self harm and subject to very close monitoring. Indeed, the under 18 group seem to represent a microcosm of the entire population of D Wing."

61. Paragraph 3.09 reads:-

"One of the problems in developing a strategy for those under 18 appeared to be that the young offender institution part of Eastwood Park had no apparent identity or management of its own, independent of the adult prison. There was therefore no wider young offender context in which to set any planning of those under 18 years of age."

62. In paragraph 3.10 it is noted that:-

"The officers were regularly detained to work on D Wing were some of the most committed and hard working inspectors found in any establishment."

63. It is also noted that staff were under intense pressure as "particularly at any one time in the day at least half of the population would be on the wing usually because of the absence of sufficient education and training provision". The paragraph reads on:-

"However, there was a significant group, including four of those under 18 whose mental state was such that they could not tolerate taking part in regular activity of the wing."

64. Paragraph 3.11 states that "the recorded engagement in purposeful activity" appeared to average little more than 15 hours per week falling significantly short of the target of 25 hours.

"Judging from what was observed in this inspection, these recorded hours were further eroded in a significant way. On most days girls left late for education and were returned early for meals. On one occasion the afternoon session was almost halved when the final meal of the day was served at 4 p.m."

65. In paragraph 3.12 of its report the inspectorate noted that the girls spoke "very critically of the long hours that they spent in their cells during the day and the frequent loss of the evening association".
66. The Governor, however, states that one of the important differences in the regimes for those over 18 and those under 18 is that for the latter "every effort is made to maximise the time that juveniles spend out of their cells", and he gives examples (paragraphs 9 and 10, 2/407).
67. In paragraph 3.13 the report commended the approach to self harm and vulnerability and:-

"It was a tribute to the staff that the overwhelming majority of the 12 girls interviewed by inspectors ………said that they felt safe on D Wing and had not experienced bullying."

68. The report in paragraph 3.14 noted a lack of support to staff from mental health specialists and noted in 3.15 the failure on the part of the establishment to introduce the child protection procedures stipulated in PSO 4950. Paragraph 3.16 noted a failure to put in place a co-ordinated response from the establishment to the training needs of each girl.
69. The report made a substantial number of recommendations for the improvement of the care and training of young women under 18 (see 1/177).
70. Mr Kovats submits that the report made no complaint about the mixing of under 18s with over 18s. However, the report noted the inappropriateness of prison for those under 18 in Eastwood Park and also noted that it was the policy to remove under 18 females from the prison estate by April 2002.
71. I turn to the claimant's evidence. She compares Stamford House favourably with Eastwood Park (1/101). In Stamford House she was only in her room to sleep, there was one member of staff per child and she was able to develop relationships with staff. She was treated like a child, and she felt that she obtained lots of help to talk about her offending behaviour and to talk through her feelings. Paragraph 4.3 of her first statement reads:-

"In prison you are locked up for long periods of time and there is no time to get to know the staff. There are a lot of drug addicts here who are dirty and they are like zombies. You can get anything you want in prison I have seen a lot of things going on. You can hear staff asking for scissors to cut people down which is very disturbing. There is only one probation officer for the whole of the prison."

72. The HM Inspectorate of Prisons Report offers support for the claimant's account. It noted in paragraph 3.12 that the girls spoke very critically of the long hours which they spent in their cells (see paragraph 65 above) and that for some members of the staff:

"opening a cell door to find some form of serious self harm, such as a girl who had seriously cut herself or was almost unconscious with a ligature, was for some an almost daily experience." (paragraph 3.13,1/174)

73. The Governor accepts that in a typical day a person under 18 would be locked up for about 111/2 hours from 20.30 to 08.00 (2/410). On Saturdays and Sundays the lock-up was from 18.00 until 08.00 on the following day (second witness statement, paragraph 4). The claimant describes the Saturday regime as being locked up following tea at 4.15, at 4.45 p.m. until the next morning.
74. The claimant said that as far as education is concerned there were only about 15 hours per week, she found what was offered unsatisfactory and compared the much better facilities at Stamford House. The figure of 15 hours receives support in the report of the Inspectorate in paragraph 3.11 to which I have already referred. The Governor does not accept this figure and states that the proper figure is 22.5 hours (2/412 and 2/417, paragraph (c)).
75. In paragraph 4.18 the claimant wrote:-

"Adults: I mix with adult prisoners on a daily basis. On my wing, Delta, there are 18 to 21 year olds and I am the youngest on the wing. I meet adult prisoners, including lifers, every day in education and we all take the same classes. There are lifers in the classes too. Adults are also in the Chapel, visits hall and until recently were listeners. Held in prison changes because of the risk of abuse. During association in the evening during dining I mix with the wing which includes 18 to 21 year olds. I would quite happily agree to moving out of prison so that I did not have to associate with the older prisoners." (1/103)

76. She describes, in paragraph 4.23, meeting difficult and bad people which she would never want to meet. In paragraph 4.24 she talks about an enhanced thinking skills course on which she did not do very well:-

"This group programme included adults and I was the youngest one there. Everyone else on the course seemed confident, and grown-up, louder and more articulate and I felt unable to contribute in the same way so did not say too much. I told them this and it was agreed I would have done better in a different group."

77. According to the Governor, "exceptionally, juveniles [as he calls those under 18] are allowed to attend classes provided for young offenders and adult prisoners ... if it is clear that will benefit educationally". The class teacher will know the identities of the juveniles and is responsible for monitoring the interaction (2/412). Subject to one rare exception, he states that there is no mixing of juveniles and older detainees in the gym except in so far as trusted adults act as gym orderlies (2/413).
78. The Governor gives his view on the impracticability of preventing contact with those over 18, the advantages of permitting it and the careful management of all contact (2/414-415 and 421) . Nothing in the records to suggest that those over 18 "were having an adverse impact on [the claimant's] behaviour or morale" (2/416). The records (2/473- 498) which are set out in full show, it seems to me, that her behaviour was erratic but, subject to a few more serious lapses (see e.g. 2/490), was not out of the ordinary.
79. In her second statement (1/105) the claimant commented that there was no system for placing the under 18 year olds in one area and the over 18 year olds in another area and that the cells either side of her were occupied by either persons under 18 or over 18. She states that the under and over 18 year olds mix on the wing all the time and it would be impossible not to mix given the layout of the wing and cells. In paragraph 10 she writes:-

"Timothy Beeston [the Governor of the prison] says that the young offenders and juveniles were told not to mix on the landings. This is nonsense; I was never told not to mix with the older people on the wing. It would be impossible not to mix with the juveniles and young offenders that will be clear from below where I describe the wing layout."

80. The description will be found in paragraphs 11-13 of the second statement (1/107). The single cells for those under 18 are on the upstairs level with cells occupied by those over 18 opposite and alongside the single cells.
81. As to Mr Beeston's statement (2/420) that it was unlikely that she had much contact with lifers because Eastwood Park is used only for the short term accommodation of some lifers and that during the claimant's stay only 2 lifers were present at any one time, the claimant said (in paragraph 19 of her third statement) that she had been told by the prisoners there were lifers and spoke to two women who claimed to be lifers.
82. In paragraph 16 she refers to the drug addicts on the wing, and the strange behaviour of the self harmers. She did not recall self harm going on at Stamford House.
83. In paragraph 26 she compares the regime of the prison and Stamford House.
84. In her third statement she said that there would generally only be three to four officers around to supervise activities and that there were at least six areas on the wing that needed observing. In paragraph 11 she wrote that there were too many girls in too many different areas for even four officers to monitor and supervise properly "as a result I saw that things went on that should not including 'lesbian activity', smoking and bullying." In paragraph 13 she stated that the situation would be worse if officers were called off the wing to deal with other situations leaving only one officer to supervise (1/109b).
85. The claimant did not allege that she was bullied and the absence of bullying at the time of the inspection was confirmed in the Report (see paragraph 3.13 above).
86. The Governor sets out in his second statement the staffing levels and a schedule of training courses (paragraph 6 and following), which Mr Wise criticises. The effect of his evidence is that five officers are detailed to work on D wing during the day, with a further principal officer. They work mainly on the wing and tend to stay on the wing for a considerable period of time. I have already set out the Inspectorate's very positive comments about the staff (paragraph 6 above).
87. I should add that it is not necessary for me to refer to certain material put forward by the claimant which relates to other establishments.

The UN Convention on the Rights of the Child

88. The Convention was signed by the UK in 1990 and ratified with reservations in December 1991. According to then Minister of Health, Mrs Bottomley, the UK played a leading role in drafting it (House of Lords, House of Commons Joint Committee on Human Rights, 10^th Report of session 2002-2003 (HL 117 and HC 81). The only two countries which have not ratified the Convention are the USA and Somalia.
89. By virtue of Article 1 "a child" is, in so far as the UK is concerned, a person under the age of 18. Thus the claimant was a child for the purposes of the Convention when sent to and detained at Eastwood Park. Under UK domestic legislation she was also a child (see section 105 of the Children Act 1989).
90. Article 3 provides:

"Best interests of the child

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.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff as well as competent supervision."

91. Article 37 provides:

"Torture and deprivation of liberty

(c) 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. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contract with his or her family through correspondence and visits, save in exceptional circumstances."

92. Article 51 provides:

"A reservation incompatible with the object and purpose of the present Convention shall not be permitted."

93. The UK entered two reservations to Article 37(c), one on behalf of the United Kingdom and one on behalf of the dependent territories. The former states:

"Where at any time there is a lack of suitable accommodation or adequate facilities for a particular individual in any institution in which young offenders are detained, or where the mixing of adults and children is deemed to be mutually beneficial, the United Kingdom reserves the right not to apply article 37 (c) in so far as those provisions require children who are detained to be accommodated separately from adults."

The expression "young offenders" in the reservation means "children" (Simon Hickson, paragraph 17).

94. The reservation in so far as the dependent territories are concerned states:

"Where at any time there is a lack of suitable detention facilities or where the mixing of adults and children is deemed to be mutually beneficial, the United Kingdom, in respect of each of its dependent territories, reserves the right not to apply article 37(c) in so far as those provisions require children who are detained to be accommodated separately from adults."

95. Whereas the UK in respect of the dependent territories, reserves the right not to apply article 37(c) in so far as those provisions require children who are detained to be accommodated separately from adults "where at any time there is a lack of suitable detention facilities", the UK itself reserves the right not to apply Article 37(c) "where at any time there is a lack of suitable accommodation or adequate facilities for a particular individual in any institution in which young offenders are detained." Although Simon Hickson in his witness statement (paragraph 13) took a different approach, as did Mr Kovats in his second skeleton argument, it seems to me that the words "lack of suitable accommodation" are not free standing but are linked to the words "for a particular individual in any institution in which young offenders are detained". That must be right given the structure of the sentence and, by contrast, the wording of the dependent territories reservation. The need to approach the issue from the perspective of the individual is supported by the decision in R v. Accrington Youth Court Ex Parte Flood [1998] 1 WLR 156, to which I turn below.
96. Although Mr Wise argued that the reservation is incompatible with the object and purpose of the Convention (Article 51), I see no merit in that argument. What is a small, albeit important reservation to a lengthy Convention is not incompatible.
97. Caroline Rowe Head of the Custody Team in the Juvenile Offenders Unit of the Home Office when submitting, in her witness statement, that the Government's policy in PSO 4960 reflected the UK's obligations under the UNCRC, relied upon the dependent territories reservation and not the UK reservation (see 2/210 and ff.). The error became clear during the first part of the hearing and the cause of the error is explained by Simon Hickson in his statement.
98. Simon Hickson has sought to track down why the reservations are worded as they are (paragraphs 10-12). He was unable to do so but he did find a Home Office note (page 15 of the documents attached to the statement) to the Foreign Office in which an officer of the former wrote: "In the case of females, there is some evidence that age-mixing is beneficial, and juveniles [i.e. under 18 year olds] are not held separately from adults."
99. Simon Hickson also gives the defendant's views on mixing and best interests (paragraphs 18-22).
100. In June 2002 the United Kingdom published "An update to the United Kingdom second Report to the U.N. Committee on the Rights of the Child in 1999". That will be found as Annex 2 of the Report referred to in paragraph 87 above. That states that the Government is not yet in a position to withdraw the reservation about the position of children in adult offender institutions. It states that progress has been made to improve the custodial arrangements for young people and to provide for their separation from older prisoners wherever possible. It notes that the numbers are low and because of the practical problems which follow from that "some juveniles will be held with 18-20 year olds". The report then sets out the practical problems when older juveniles are in custody on remand and continues:

"For these reasons, the government is not yet able to set a date for completely ending the use of adult prisons for juveniles".

101. In the report itself, the Committee set out the terms of Article 37(c) and of the UK's reservation and continued:

"60. Adult prisons provide 'overflow' accommodation for male juveniles on an ad hoc basis but the main problem preventing full implementation of Article 37(c) is finding suitable accommodation for the increasing numbers of girls being given custodial sentences. In March 1999, the then Home Secretary committed the Government to removing all under 18 year old girls from prison system to local authority care by April 2000. This was not achieved. Instead, in April 2000 with the setting up of the Youth Justice Board, a deadline of March 2001 was set up. This was not met. Between April 2001 and March 2002 the number of girls under 18 being remanded or sentenced to prison custody rose from 89 to 119. As the Children's Rights Alliance points out –

"The main difficulty for girls under 18 at present is that, because they are floating in some kind of unofficial limbo within the Prison Service, they are not receiving the benefits of reforms for under – 18s brought about by the Youth Justice Board.

Following the critical report of the Chief Inspector of Prisons on Holloway Prison in February 2003, the Prison Service has recently restated its commitment to remove all girls under 17 from Prison Service accommodation during 2003.

62. We recommend that the Government reinforce its efforts to ensure there are sufficient suitable places under local authority care to allow the removal of all girls under 17 from prison custody into local authority secure accommodation by the end of 2003, and so enable the reservation relating to Article 37(c) of the Convention to be withdrawn.

102. The UN Children Rights Committee in its response dated 9 October 2002 to the UK's report comments on the UK's maintenance of its reservation to Article 37(c). The CRC states:

"6. …the Committee is concerned that the State party is not in a position to withdraw its reservation to article 37(c) owing to the fact that children are still detained with adults in the State party. In that regard, the Committee is concerned that, while the State party has made efforts to reduce the number of children detained with adults, it appears that only resource considerations now prevent the withdrawal of the reservation.

7. The Committee, in line with its previous recommendation … and in light of the Vienna Declaration and Programme of Action, recommends that the State party take all necessary measures to end the detention of children in the same facilities and to withdraw its reservation to article 37(c)". (Emphasis in original) (CR1, page 577).

103. I turn now to ministerial policy.

Ministerial policy

104. On 8 March 1999 the then Secretary of State, Mr Jack Straw, gave the following Parliamentary answer:

"The Government have concluded that establishing distinct units for the very small number of 15 to 17 year old girls held in Prison Service accommodation is not the best way forward, or in their best interests. The introduction of the detention and training order will allow for greater flexibility in the placement of sentenced young people. It is our intention to make use of this flexibility by placing sentenced 15 and 16-year-old girls in available non-Prison service accommodation, when the detention and training order is in force. The first priority will be to place the youngest and most vulnerable young women outside the Prison Service. In the short-term arrangements within the prison Service for holding 17 year old women, and other young women for whom other accommodation is not available, will be improved by establishing discrete units for young women under the age of 21, with enhanced regimes within these".

105. Caroline Rowe describes what happened afterwards:

"As a consequence of these developments, those responsible for placing prisoners on behalf of the Secretary of State transferred an increasing proportion of the juvenile girls who would otherwise have been placed in prison to local authority secure accommodation. However, it was simply not possible to keep pace with demand and there came a point where there were insufficient beds available in local authority establishments to remove the remaining girls from prison; this despite the fact that the use of local authority accommodation for male and female juveniles had increased from 57 beds at start of 1997 to in excess of 180 by 1999."

106. Caroline Rowe states (paragraph 13) that it was hoped that girls who could not be placed in local authority accommodation could be moved to new STCs which were being commissioned and built. It quickly became apparent, however, that this objective would not be met in the short term, so four existing women's prisons were identified to provide dedicated provision for juveniles within existing female young offender wings; namely HMP & YOPI New Hall, Brockhill, Bullwood Hall and Eastwood Park. These prisons were chosen because of their geographical spread and in recognition of existing expertise in dealing with young offenders. The YJB purchase around 100 beds on the young offender wings at these institutions (paragraph 17).
107. Simon Hickson, Head of the Juvenile Offenders Unit of the Home Office in his witness statement wrote:

"26. The Ministerial statement was made in March 1999 in good faith against the above background. The Youth Justice Board took over the commissioning and purchasing of the juvenile secure estate in April 2000 and at the same time the Home Office made funds available for 72 additional STC places. The bulk of these, 64 places, were planned for autumn 2002, and the YJB was working on the basis that the commitment could be met by the end of 2002. However, the offending and sentencing climate changed in 2002, in a way that Ministers, accountable to Parliament and the public, could not ignore. First, responding to general concern about youth offending, in January 2002 the Lord Chief Justice gave a judgment that encouraged robust sentences for mobile phone robberies without distinction as to age: Attorney General's Reference No 7 of 2002 (Christopher Sawyers), Steven James Q. [2002] EWCA Crim 127, January 29, 2002. This was widely reported and had an impact beyond the particular circumstances of mobile phones. The average net period in custody for DTO's – for all offences – increased from 4.0 months in December 2001 to 4.7 months by summer 2003.

27. It was also evident to Ministers that there was a surge in street crime, particularly muggings, in a number of inner cities, with juveniles prominent amongst the offenders (for example, it was estimated that juveniles were responsible for 40% of street robberies). In response they established the "street crime initiative" to ensure that the various local services focussed on the need to tackle this problem, and in particular more reliably to bring offenders to custody and to ensure appropriate interventions with those who were brought to justice. As part of this they decided it was necessary to implement powers taken in s. 130 of the Criminal Justice and Police Act 2001 to permit secure remands for juvenile defendants with a record of persistent offending, as well as those facing serious charges. This was implemented in two stages – on 22 April 2002 and 16 September 2002 – in different parts of the country (the Criminal Justice and Police Act 2001 (Commencement No 6) Order 2002: 16 April 2002).

28. However, these measures were not taken in isolation or without regard to the consequences. The Government implemented "bail tagging" for 12 to 16 year old juveniles in two phases on 22 April 2002 and 1 June 2002 (The Criminal Justice and Police Act 2001 (Commencement No 4 Transitional Provisions) Order 2002, 16 February 2002); funded a progressive expansion of the "intensive supervision and surveillance programme" as an alternative to custody within the supervision order (Section 63 of the Powers of Criminal Courts (Sentencing) Act 2000, consolidated from Section 11 of the Children and Young Persons Act 1969); altered the criteria for early release of trainees under the DTO (within the existing early release power provided by Section 102(4) of the Powers of Criminal Courts (Sentencing) Act 2000 – consolidated from Section 75(4) of the Crime and Disorder Act 1998); and made available a facility to use up to 600 Prison Service young adult places for juvenile use.

29. Together these changes, along with some abatement in sentence lengths, are now bringing the juvenile population back down from its 2002 peak. On 31 October 2001 it was 2829; on 31 October 2002 it was 3175; and on 31 May 2003 it was 2838. It is again that background that the Youth Justice Board announced earlier this year the intention by a specific deadline – the end of 2003 – to take under 17 year old juvenile girls out of Prison Service custody."

Prison Service Orders

108. I have been referred to three Prison Service Orders:

i) 4950 issued 29 July 1999, entitled Regimes for prisoners under 18 years old (CR1 at 245-285);

ii) 4950 issued 11 February 2000, entitled Regimes for young women under 18 years old (CR1 at 286-332);

iii) 4960 issued 9 May 2001, entitled Detention under section 92 of the Powers of Criminal Courts (Sentencing) Act 2000 (formerly section 53 of the Children and Young Persons Act 1933): Young people serving longer sentences for various offences (1/55).

109. In the introduction to PSO 4960 under the heading "Output" the following passage appears:

"Girls below the age of 18 and boys below the age of 15, will, as a general rule, continue to be placed outside the Prison Service Estate, either in local authority secure units or secure training centres." (Underlining added)

110. Paragraph 3 of the Introduction under the heading "Impact and Resource Assessment" states:

"Given that this PSO put section 92 detainees aged 15 to 17 on much the same footing as their DTO [Detention and Training Order] counterparts, there will be no significant resource implications for establishments in the Prison Service Under 18 Estate."

111. In paragraph 5.4.1 it stated that the Secretary of State has a wide discretion in deciding where section 91 offenders should be placed "but the only practical options at present are secure accommodation in a LASU, STC or a prison service establishment, depending on age and the circumstances of the individual case." The paragraph then refers to the 13 establishments in the "Under 18 Estate". Paragraph 5.4.2 sets out the factors to be taken into account by the officer making the placement decision under section 92.
112. Paragraph 5.4.3 points out that there are no discrete under 18 establishments for females. Thus females under the age of 18 "will, in the normal course of events and subject to individual assessment, be placed in LASUs in line with the priorities of the Youth Justice Board" (underlining added).
113. Paragraph 5.4.2 provides:

"The designated officer's decisions on the placement of section 90/91 offenders under 18 must be made on the merits of each individual case and by reference to a number of factors, including the age of the young person, the nature of their offence, the length of their sentence, their relative vulnerability or maturity, their ability to cope in a structured environment, their previous behaviour in detention, any history of self-harm or evidence of propensity for it, their educational needs, their health needs (both physiological and psychological), the proximity of their family or other support and the ease of access for visiting. In addition to these factors the designated officer must also take into account the Youth Justice Board's views on the best use of the accommodation available when competing demands are to be met."

114. Paragraph 6.1.1 states that PSO 4950 defines the regimes for young offenders who have been sentenced to a detention and training order. It continues:

"The objectives and mandatory requirements set out in PSO 4950 must also be applied by Governors to section 92 detainees in the Under 18 Estate with the following modifications."

115. There are then set out a number of appropriate modifications.
116. The introduction to PSO 4950 Regimes for under 18 year olds states, in part:

"It is important at the outset to make clear that the regimes for under 18 year olds are different because under 18 year olds are, as adolescents, different. In order for the regimes to be appropriate to the needs, abilities and aptitudes of the individuals and focused upon preventing offending, they must take into account the characteristics of adolescent behaviour:

… [see below in that part of 4950 dealing with the regimes for young women]

Underpinning the entire PSO is to belief that custody cannot just be about containment. However, if it is to have a positive influence we must provide regimes, which recognise that

i) adolescents do change,

ii) that adults matter to adolescents and

iii) that adolescents need care and control."

117. I turn to that part of PSO 4950 devoted to regimes for young women under 18 years old". Paragraphs 1.5 and 1.6 provide:

"1.5 Regimes for adolescent women need to be appropriate to their particular needs, abilities and aptitudes.

To do this they must take into account the characteristics of adolescent behaviour:

I) the importance of peers and peer-pressure on behavior;

II) their impulsiveness and inclination not to think ahead but to act to gratify immediate needs;

III) emotional immaturity even when cloaked in physical maturity;

IV) their capacity for being cruel to one another- hence the importance both of staff and peers providing role models, promoting good behaviour and of clearly defining and maintaining the boundaries of bad behaviour;

V) the prevalence of impoverished upbringing in their backgrounds and a history of low achievement;

VI) their potential to mature and grow out of crime.

1.6 Adolescent behaviour can also be influenced by the following:

1) the prevalence of abuse and implications this has for self-harm;

11) impoverished backgrounds;

Ill) educational under-achievement and lack of work experience,

IV) generational unemployment."

118. Paragraph 2.2 provides under the heading "Culture and Ethos":

"2.2.1 As important as the structure and features of the regimes, are the ethos and culture of the establishment in which the young woman is detained. If the new regimes are to give life to the principle of dealing with people as individuals, a positive ethos and culture must exist which recognises the rights and responsibilities of the individual. Central to this is the role of staff in promoting and protecting each young woman's welfare. To discharge this duty effectively it is necessary to do more than merely protect the individual from harm. It requires governors to identify and meet the legitimate needs of each young woman by limiting the negative impact custody can have on the individual. The ethos of the institution must nurture that development. Critically it will depend upon the attitudes and behaviors of staff, which must be anti-discriminatory and age-appropriate. Governors must ensure that all staff are clear about their responsibility in all circumstances to deal with the young women in their care openly and fairly, and to be mindful of their vulnerability. This must be underpinned with appropriate training.

2.2.2 Governors must write and publish a statement of purpose for their establishment which succinctly and clearly encapsulates the principles and aims of the regimes and the ethos and values which underpin them [see Beeston, second statement, 10A], The statement must be consistent with the Prison Service's statement of Purpose, the principal aim of the youth justice system and reflect the principles and spirit of the Children Act 1989 and the basis upon which the custody and care of young women are achieved. A signed copy of it must be prominently displayed in the pedestrian entrances to the establishment together with the establishment's formal designation in law of its status as a YOI. Its purpose is to signal and to reflect the qualitatively different types of regimes which they operate for young women aged under 18."

119. Chapter 3 deals with the role of the staff and under the heading "Objective" the following is stated:

"Young women can be easily influenced by the immature and irresponsible behavior of their peers; as significant adults, staff have the opportunity and responsibility to provide models of behavior which assist young women's personal development, help maintain a safe and secure environment and which ultimately will help prevent them offending. Whatever their designated duties and whatever their work activity, the way in which staff speak and act towards one another, as well as towards young women will profoundly influence the way in which young women behave. This method of working with young people is termed 'pro-social modelling' and is defined as the quality of a person's relationship with staff and the way that relationship is used to reinforce pro-social behavior".

120. Under paragraph 3.2 is set out an objective in relation to the selection and recruitment and training of staff and that reads:

"To ensure that people, including contract staff, recruited or selected for work which will involve them in sustained and unsupervised contact with young women are suitable for that role. To ensure they receive appropriate training and support to enable them to work effectively."

121. Paragraph 4.1.5 provides for the identification of each young women's immediate needs using a form known as "ASSET". Paragraph 4.1.6 deals with assessment.
122. Annex A provides in part:

"The law generally requires young people under 21 who have been sentenced to detention in a YOI to be housed separately from persons over 21. Ten prisons within the female estate have accommodation designated as suitable for young offenders. Sentenced young women under 18 years of age are housed with other young offenders in this designated accommodation. Women's prisons also house adult prisoners. It is not a legal requirement for young women who have not been sentenced or are on remand to be accommodated separately from adults.

In general those aged 15-17 will serve their sentence in YOls, and those aged 12-14 in STCs or local authority secure accommodation except where individual assessment recommends otherwise. However, the Home Secretary has agreed that from April 2000, sentenced 15 and 16 year old young women will serve their sentence in Local Authority or other secure accommodation as it becomes available. In due course sentenced 17 year old young women will also be placed in other secure accommodation other than prisons. (Underlining added)

The Children Act 1989

The Children Act 1989, does not apply to the regimes for the treatment of under 18 year olds in prison establishments. However, we are required to reflect the standards imposed by the Act through delegated legislation and Codes of Practice. The central tenet of the Act is the principle that safeguarding a child's welfare is of paramount importance so that when decisions are made about a child, the primary consideration must be what is best to safeguard their welfare. The Prison Service has a responsibility to ensure that the welfare of each young woman in our custody is safeguarded. But it also has a responsibility to safeguard the welfare of all prisoners including the other young women in the establishment and to maintain a safe environment for staff and for visitors. These considerations, and that of safeguarding the public by executing the warrant of the court, must be born in mind when determining how the welfare of the individual is best safeguarded. The principles and standards set by the Children Act and its regulations are reflected in the emphasis this PSO places upon the importance of

. the role of staff and their rigorous selection, training, management and support

. enabling the development of the individual young woman;

. maintaining safety and security; and,

. preventing re-offending.

Helping to prevent offending by the young women on our establishments helps safeguard their welfare and the public interest. More specifically, governors are required to introduce arrangements to protect young women from significant harm adapted from those required by the Children Act. Guidance for preventing abuse of trust is also set out in "Caring for young people and the vulnerable" (Home Office 1999)."

123. As to the statement that the Children Act 1989 does not apply to under 18 year olds in prison establishments, Munby J. held that this was wrong in R. on the application of Howard League for Penal Reform v Secretary of State for the Home Department [2002] EWHC 2497 Admin, [2003] 1 FLR 484. He held that although the 1989 Act did not confer or impose any functions, powers, duties, responsibilities or obligations on either the Prison Service (or its staff) or the Secretary of State for the Home Department, and in that sense did not apply as such either to the Prison Service or to Young Offender Institutions, the duties which a local authority would otherwise owe under the 1989 Act to a child in need within its area did not cease to be owed merely because the child was currently detained in a Young Offender Institution.
124. Annex B entitled "Working together to safeguard children" provides:

"The consultation paper "Working Together to Safeguard Children" (Department of Health, Home Office, Department for Education and Employment and the National Assembly for Wales,1999.) on the government's new proposals for inter-agency co-operation reiterated the need for co-operation between all agencies to ensure the welfare of children is safeguarded. It is recognised that more needs to be done to break down the barriers between agencies so that 'working together' can develop. The following outlines the means by which better interagency co-operation can be established. The move towards better practices is given added impetus by the recommendations contained in both Sir David Ramsbotham's 'Thematic Review of Young Prisoners' and Sir William Utting's review of the safeguards for children living away from home. The focus of better working together is improving the care of the individual young woman. The approach to achieving this is appropriately described as a series of inter-related objectives which contribute to the aim of better child protection. These are:

( protect and safeguard children who are suffering from, or who are at risk of significant harm;

( promote and support good long-term outcomes in terms of health, development and educational achievement for those who become involved in the child protection system;

( give clear routes in and out of the child protection system so that children and families are not drawn into the net unnecessarily

( promote a more positive image of the child protection system to encourage and enable people to gain access to the help and advice they need;

( ensure that children are listened to and their views taken into amount

( relate clearly and consistently to the criminal justice process;

( enable parents and other family members to be as fully involved as practicable, taking account of the children's welfare;

( recognise the significance of ethnic and cultural diversity;

( promote community responsibility for the welfare of children;

be cost effective and enable other available resources to be used in the most effective way.

125. In "A second chance: A Thematic Review" referred to in Annex B can be found the following:

"Provision for Girls.

3.26 The Prison Service had been operating under a clear understanding that girls under 18 years would have left the prison system by April 2000 and had planned accordingly.

3.27 Arrangements for girls had suffered from the uncertainty about the continuing role of the Prison Service in providing for them.

3.28 Establishing an appropriate regime for the care of girls had not received the additional resources necessary to meet the Standards set by the YJB.

3.29 Provision for unsentenced girls aged 17 was unacceptable when they were held in adult regimes." (Underlining added)

R v. Accrington Youth Court Ex Parte Flood

126. I turn to R v. Accrington Youth Court Ex Parte Flood [1998] 1 WLR 156 (Div. Ct. Sedley and Astill JJ). The applicant, who was 16 years old, was sentenced to eight months' detention and committed under warrant to Risley prison. No part of that prison was designated as a YOI. By virtue of the now repealed section 1C of the Criminal Justice Act 1982, which had been inserted by the Criminal Justice Act 1988, an offender sentenced to detention in a YOI was to be detained in such an institution "unless a direction under this section is in force in relation to him."
127. Sub-section (2) empowered the Secretary of State to make a direction that such a person shall be detained in a prison or a remand centre instead of a YOI "but if he is under 18 at the time of direction, only for a temporary purpose."
128. Under section 1A of the Act, a person under 21 but not less than 15 years of age for whom a custodial sentence was appropriate would, subject to the provisions of section 53 of the CYPA 1933, receive a sentence of detention in a YOI. In the case of an offender aged 15, 16 or 17 the maximum term of detention in a YOI was originally 12 months but became 24 months under the Criminal Justice and Public Order Act 1994, section 17. Section 1C applied to those sentenced to detention in a YOI and did not apply to those sentenced under section 53 of the CYPA 1933 which, in so far as the place of detention is concerned, had almost identical provisions to those contained in what is now section 92.
129. In giving judgment Sedley J said as to section 1C (page 162):

"The Secretary of State's power, and therefore that of his designated officers, to depart from the provision for allocation to a young offender institution is limited to permission "from time to time [to] direct that an offender … shall be detained in a prison or remand centre … for a temporary purpose" if under 18. The phraseology makes it plain that Parliament was authorising the Secretary of State on occasion to place a particular offender under the age of 18 temporarily in a prison or remand centre. It did not authorise him to make it a general practice to do so; it did not authorise him to give such a direction in relation to offenders generally; and it did not authorise him to keep them in a prison or remand centre for however long it takes (possibly the whole length of the sentence) to make a lawful placement in a young offender institution. The practice not only permitted by enjoined by the combination of circular instruction 2/91 with its annexures and the total non-availability of any young offender institution to which newly sentenced female young offenders may be sent is in our judgment a violation of the principle contained in section 1C(1) of the Criminal Justice Act 1982, as amended, and an excess of the powers contained in subsection (2) of the enactment.

We recognise the problems which this conclusion creates for the Prison Service. But it has to be recognised, too, that the very change which the amendment [in 1988] of the Act of 1982 brought about was spelt out in the 1988 letter, which then went on to lay down a regime which meant that there would in practice be no change. This is not easy to comprehend when one bears in mind that the same department of state will have promoted the amending legislation. Mr Wise was also justified in putting before us the United Nations Convention on the Rights of the Child (1989) (Cm. 1976), ratified by this country in 1992 with the following reservation."

130. Sedley J then set out the reservation which I have already set out in paragraph of this judgment. He went on to say that the reservation was considered necessary because of article 37(c). He continued (page 163):

"It is apparent that careful consideration had been given to the purposes of section 1C – and we respectfully agree with the government's view of those purposes – and a reservation made in favour of them. For this reason, too, it is disturbing to see that as long ago as 1988 a regime had been in place within the prison system which made it inevitable that those purposes would be exceeded."

131. Astill J said (page 163):

"The warrant of commitment directs that the offender is to be received into prison and the court draws the warrant in those terms because, and only because, the policy of the Secretary of State is to send all female young offenders sentenced to detention in a young offender institution first to a prison. It is the policy that dictates the warrant and not the warrant that dictates the policy.

In those circumstances, there cannot properly be said to be a discrete decision made about each young female offender. This is blanket policy; it is contrary to section 1C(2) of the Criminal Justice Act 1982 and it is accordingly unlawful."

132. He went on to say that the purpose of the legislation is clear:-

"In prison, young female offenders mix with adult offenders, some of whom have committed grave crimes and many of whom have disturbing personal problems. They often remain there for weeks before a place in a young offender institution is found. It would be difficult to find any argument which supported that position. …

The decision of this court will give effect to the purpose of a legislation, which is to protect often vulnerable young offenders from the possibility of malign influences."

133. The 2000 Act repealed section 1C (see section 165(4) and Schedule 12 Part 1). Under the 2000 Act a sentence of detention in a YOI is reserved for those aged 18 or over. As to those under 18, by virtue of section 100, if the appropriate conditions are met , they will receive a detention and training order. By virtue of section 102:-

"1. 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 maybe authorised by him for that purpose."

134. By virtue of section 107(1) "secure accommodation" means a secure training centre, a YOI, specified accommodation provided by a local authority or under section 82 of the Children Act 1989 or:-

"Such other accommodation provided for the purpose of restricting liberty as the Secretary of State may direct."

135. Following the decision in Flood, according to Frances Crook:-

"The prison service responded by designating wings in two women's prisons as dedicated units with a view to developing specialist regimes which trains staff." (Paragraph 7.13, 1/112)

136. Frances Crook sets out in paragraphs 9 and the following what she says have been the consequences of the Flood decision:-

"The government as a result of Flood promised to remove girls from adult prisons.

On 8^th March 1999 the Home Secretary Jack Straw made the following statement to Parliament:

'The government has concluded that establishing distinct units for the very small number of 15-17 year old girls held in the prison service accommodation is not the best way forward or in their best interests.'

On 14^th December 1999 Paul Boatang said:

'The Home Secretary announced that from April 2000, 15 and 16 year old girls will be placed in local authority care, not in prison. In the longer term sentenced young women aged 17 will also be placed outside Prison Service custody.'

To comply with the Flood ruling the Prison Service stated that girls aged under 18 should only be held in ten designated young offender institutions. The Prison Service published Prison Service Order 4960 'Regimes for Young Women under 18 years old.'

The Youth Justice Board stated in "Reform of the Juvenile Secure Estate, a four year plan by the Youth Justice Board) (March 2001) that it was it as an "absolute priority to place all young women outside the adult prisons" and was determined to place them in more appropriate accommodation by mid 2002."

Caroline Rowe

137. In her witness statement Caroline Rowe sets out the defendant's views about the particular problems of under 18s sentenced to some form of detention:

"44. … [T]he government considers (and most commentators on penal policy agree) that it is strongly desirable for juveniles to be detained in an environment where they have day-to-day contact with other juveniles of similar age. Children of 15 and 16 are still developing, and need to acquire social skills and experience of interacting with their peers. Thus, it is desirable for them to be held together in groups, rather than dispersed in isolation from others of their own age. These points have important ramifications for the allocation of boys and girls between the various types of secure accommodation. In view of the different patterns of offending behaviour, there are too few female detainees of 15 and 16 (the number is too low even if one takes account of 17-years olds) to allow a network of female Juvenile YOIs to be developed, unlike the position in relation to male juveniles. Further, as explained at paragraph 19 above, it would be undesirable to put all female juveniles together in just 1 or 2 establishments. This is an important reason why, as noted above, female juvenile detainees will normally be placed in LASCHs. It is, however, still necessary to have an understanding of the operation of the male juvenile estate, since the provision for females who are placed in Prison Service accommodation seeks to replicate this, to the extent that this is possible given the much smaller numbers.

…

MIXING OF JUVENILE FEMALES

49. Traditionally the most usual reason for the placement of female detainees in Prison Service accommodation has been the operational reason that there simply has not been a sufficient number of places available in LASCHs. As a consequence less vulnerable normally older, juveniles have had to be transferred tin order to free up spaces in LASCHs for those considered to be more vulnerable generally, but not exclusively, younger girls. As a result of the continuing investment referred to above, this is no longer a factor in the placement decision for younger juvenile girls where alternative opportunities now exist, in particular and increasingly in STCs. As a consequence, there has been no operational need to place 15-year old girls in Prison service accommodation since 21 November 2002, when a 15-year old girl was placed overnight in Prison Service accommodation but moved the following day to a LASCH and it is anticipated that this will be extended to 16-year old girls by the end of this year [2003]. Indeed, the YJB made a public commitment on 17 February 2003 to achieve this aim … This is in accordance with long-standing government policy … even though there has been some slippage by reason of the act that it has taken longer than anticipated to provide new secure accommodation and there have been unforeseen increases in demand by reason of, for example, street crimes and secure remands initiatives in 2002. Assuming that the target for16-year olds is met, that will just leave 17-year old female juveniles in Prison Service accommodation, and therefore in a position where they may mix with young offenders aged 18-21. …

50. It may still be necessary to place 15 and 16 year-olds in Prison Service accommodation if there are unexpected surges in demand, which means that the LASCH and/or the STC estate cannot cope with demand. This may happen where there is a legislative or policy change that results in an increase in the number of juveniles being sent to secure detention. If such an increase in requirement for places proves to be long-term, then new provision can be made, although this will inevitably take time given the need to allocate public funds and/or negotiate arrangements with private sector providers. The building, and in particular the planning, process also adds to the time required. In the circumstances, it will remain necessary to use prison Service accommodation selectively to manage peaks in demand for the foreseeable future. This process of management, which is a necessarily continuous process involving close liaison between the YJB and the Prison Service who between them share placement responsibility for juveniles, is described in more details in the statements of Peter Minchin and Ronald le Marèchal respectively.

51. Whilst, therefore, it will become increasingly rare for 15 and 16-year-old females to be placed in Prison service accommodation, 17-year old detainees will for the time being continue to be placed in the 4 designated female YOIs offering the enhanced regime described above where there will be mixing with young offenders. This policy can be justified for a number of reasons:

(a) It may be in the interests of older juvenile detainees to associate with 18 to 21 year olds under careful supervision as opposed to the younger children, some aged only 10 and commonly aged 12 and 13, detained in LASCHs. This is especially so where there is evidence that the juvenile in question has a propensity to bully younger children. It may even be inappropriate to mix such juveniles with the 14 year olds who are detained in STCs.

(b) In this respect it should be noted that rigid separation of under and over 18s is not necessarily in the interests of a juvenile detainee. It is necessarily in the interests of a child in a juvenile establishment that he or she must be transferred on his or her 18^th birthday even if he or she has a relatively short period of time left to serve? Where that individual has formed a positive and supportive relationship with a slightly younger detainee, is it in the interests of either detainee that there should be automatic separation on an arbitrary date? Allowance has to be made for the different rates at which individual detainees mature.

(c ) The existence of discrete provision for 18 to 21 year olds does not seem to have been taken into account by those advocating the separation of older children from adults. In particular the ICCPR and the UNCRC make no allowance for the fact that if juvenile detainees are mixed with adults this will almost exclusively be with young offenders of age 18 to 21 and not with the adult prison population generally (see further the statement of Timothy Beeston).

(d) As noted above, it is often necessary to have a critical mass to provide appropriate secure training opportunities. This is more of an issue with vocational qualifications. By way of example, in the case of female juveniles hairdressing is a popular vocational course but in order to provide this the establishment obviously needs to be able to provide salon facilities, as it would be inconsistent with the secure nature of the detention for the detainee to be allowed to attend a college or other external training provider. Whilst such provision is possible within adult prisons, and is consequently available to those detained in the YOI wings, it is not cost-effective or practical to provide similar facilities within the much smaller and more limited confines of LASCHs.

(e) In a small number of cases the juvenile may be so difficult to control that it is simply not possible to detain the individual within a LASCH or STC, and for the safety of the individual, and others, more secure prison Service accommodation is required.

(f) A limited amount of mixing of older juveniles with young offenders may assist with the social cohesion of what otherwise could be painfully small juvenile group. In particular, it provides a useful means of preventing the formation of small cliques of juveniles within female YOI units. This is a useful tool for managing the risk of bullying. This is in the interests not only of those who might be bullied but also of those juveniles who might be tempted to bully others.

(g) The juvenile, or his or her parents or guardian, may request a transfer to the YOI wing of an adult prison. This may be for any of the reasons referred to above or alternatively because of the geographical location of the YOI, which may be more convenient than alternative accommodation, even if that is within a LASCH or STC.

(h) While there are mother and baby units in Prison service establishments that are able to accommodate pregnant juvenile detainees, there is no equivalent accommodation in LASCHs and STCs."

138. Caroline Rowe (1/220) then cites a thematic review published in October 1997 entitled 'Young Prisoners' in which the then Chief Inspector of Prisons, Sir David Ramsbotham said that currently women prisoners of all ages were allowed to mix and that the small size of the penal prison population continues to make this a preferred option in a system with scarce resources. Sharing facilities allows greater flexibility and choice. But he recommends that living accommodation for unconvicted and convicted young women in custody should be separate from that for adult women allowing selective age mixing for the purposes of shared activities.
139. Caroline Rowe cites an earlier report by Sir David Ramsbotham entitled "Women in Prison: a thematic review by H.M. Chief Inspector of Prisons" (1/220) . He notes that women prisoners were held together regardless of age and the rationale for this lack of distinction is the comparatively small number of women prisoners and is a response to what would otherwise be an unacceptable inflexibility in the management of the female estate. He notes that the total population of women in custody under the age of 21 would fill one or two very small prisons, inevitably requiring most of the prisoners to be even further from home than they are in shared locations. He states that dedicated and separate young offender units within women's prisons are similarly regarded as impractical, the shortage of regime facilities in prisons necessitating all age groups sharing what exists. He notes however that it is normal for young offenders to be housed in separate units and that there are other reasons why age mixing occurs in women's prisons. Women prisoners manage to live together despite the considerable age rage with commendable tolerance. Some older women become part of the strategy to manage younger prisoners.
140. In paragraph 3.34 Sir David Ramsbotham wrote:

"…We concur with age mixing but greater care should be exercised over which individuals are accommodated together. For example, we found an 18 year old inappropriately located at Durham and juveniles (aged under 18) mixed in with older prisoners indiscriminately at New Hall and Bullwood Hall".

141. Caroline Rowe refers to a 2001 report "Follow-up to women in prison" (1/222). Sir David wrote that the need for "greater care" referred to in paragraph 3.34 had not been achieved. He notes government policy that all under 18's will eventually be held in non prison service custody but that in the meantime, the policy was to permit 15, 16 and 17 year old sentenced young girls to be held in designated prison service establishments. He continues:

"... Whilst it was clear that the prison service was pushing for clarification on this issue from the Youth Justice Board, sentenced girls continue to be held in units dedicated for 18-21 year old women, but lacking provision for the needs of 15-17 year olds.

The absence of sufficient resources for this age group was a matter of great concern ... "

142. Sir David notes that at Holloway un-sentenced juvenile girls were being accommodated entirely inappropriately with adult women. He continues:

"Care must be taken to ensure that appropriate and ongoing vulnerability assessments are undertaken before mixing with adult prisoners is authorised, as part of the effective implementation of child protection arrangements. The Prison Service should ensure that the care and protection required by the Children Act 1989 is enforced for girls under 18 years of age."

143. Caroline Rowe concludes (paragraph 57, 1/225):-

"The policy which has emerged therefore is that steps have been taken to ensure that juvenile girls of 16 or less will all be detained in non prison service accommodation by the end of [2003] so, for this age group, no question of mixing should arise in the future provided that there are no unforeseen circumstances, such as the surge in detentions as a result of a large increases in sentences of detention passed by courts on juvenile females. By contrast, there will continue to be a number of 17 year olds, who would need to be detained in prison. Further, even where there is non-prison service accommodation available, it may still be appropriate to detain juvenile females, especially older juvenile females, in prison service accommodation in exceptional circumstances. The Secretary of State believes however, that the mixing of female juveniles that occurs in such circumstances is sufficiently addressed and that protection issues are properly addressed."

Frances Crook

144. In paragraph 17 of her witness statement (1/114) Frances Crook states that the Howard League with the support of many children's charities, do not believe that prison is an appropriate place for girls on the basis that:

"17.1 Prison is essentially an adult institution with a punitive culture and is not in a position to provide a suitable and child centred therapeutic environment.

17.2 Many of the girls are vulnerable and damaged. HM Inspectorate of Prisons carried out unannounced inspection of HMPYOI Eastwood Park in October 2001 (extracts attached in exhibit FC3) and noted in relation to 15 – 17 year old girls that;

'It was impossible not to be struck by the profound personality disturbance and mental health problems that many presented and by the inappropriateness of prison, or indeed any other custodial placement for them.'

17.3 Girls in prison will only make up a minute fraction of the total prison population and therefore could be dealt with more appropriately;

17.4 There is a lack of specialist training, education and supervision when working with girls in prison;

17.5 Child protection procedures are not uniformly in place throughout the prison service placing children at risk of bullying and self-harm.

18. It is clearly a matter for parliament whether children are placed in prison. The children that are placed in prison are per Munby J: [R. on the application of Howard League for Penal Reform v. The Secretary of State for the Home Department] "…on any view, vulnerable and needy children. Disproportionately they come from chaotic backgrounds. Many have suffered abuse or neglect." It is the view of the Howard League that these children need help, protection and support if future offending is to be prevented. Hence, if it is the position that children should be placed in prison then it is essential that they are kept separate from adults to ensure that this vulnerable and damaged group of people are children are not exposed to the malign influence of adult offenders.

145. Frances Crook concludes:

"It is deeply concerning that the government should on the one hand make commitments and policies that children will be diverted away from prison system and be kept separate from adults; and on the other hand when one examines the practice to see that the reality is that children are mixing and living with adults in the prison estate. It is extremely frustrating that we cannot rely upon the promises, commitments and aspirations of ministers, in particular following the case of Flood. It is a matter of deep regret that in the six years since that important case we have returned to the same issue and that the Secretary of State is not able to comply with prison service orders or the minimum standards set out in United Nations Convention on the Rights of the Child."

Why in April 2002 were females aged 15-17 detained in LASHs and STCs being considered for a move to the prison estate?

146. This question can be answered, in my view, easily. As Mr Kovats put it (paragraph 25 above), the decision was driven by a shortage of space in LASCHs and STCs. That is amply supported by the contemporaneous material (see e.g. paragraphs 20 and 22). The shortage of space or anticipated shortage of space came about, in particular, because of the defendant's decision "to implement the legal provision giving courts the discretion to order secure remands in respect of some 12 - 14 years olds" (paragraph 22 above) as part of the street crimes initiative. That is how Mr Le Maréchal saw it at the time. An added cause was, it appears, the increase in custodial sentences for those under 18 (see e.g. paragraphs 26 and 105). Steps were taken to reduce the effect on space (paragraph 105 above) but it was not anticipated that this would cure the problem completely. The pressure on places had eased "a little" by June 25, when the claimant was moved to Eastwood Park (paragraph 39) and had considerably eased by August (paragraph 45). Only three females under aged 18 were transferred to prison by virtue of a decision made by Mr Le Maréchal's Unit and none by the YJB, although some might have been moved by the YJB but for lack of space in prison (paragraphs 45 and 47). I do not know how many were transferred to prison directly on being sentenced during this period or how many had been in prison whilst remanded in custody and had remained there after sentence.

How did Mr Le Maréchal's Unit approach the task of identifying those section 92 detainees who should be moved to the prison estate?

147. The letter of 22 April (paragraph 21) seems to me provide the answer to this question. If 15 or over, the individual's file will be considered and absent a "good reason" or "compelling reasons", they will be moved to the prison estate. If there were concerns that the individual was vulnerable or at risk in the prison estate, such a move would normally be inappropriate (see e.g. paragraph 42). The Unit received no request to move the claimant from Stamford House. Given the circumstances she was doing reasonably well there (2/546).

The claimant's move from Stamford House

148. Although Mr Wise, at the outset, made some criticism of the decision to move the claimant from Stamford House, it seems to me that the decision to move her to another facility cannot be described as irrational, putting aside any question of the suitability of that other facility. The decline in her behaviour, the 18 month difference in age between her and other detainees, the bullying and the comment of Frances Jones that the claimant would benefit from a transfer (paragraph 28 above), provide good reasons for moving her. I add, however, that the factor that the claimant was 18 months older than any other detainee must be viewed with caution. Given the decision at this time to move to or place in the prison estate those aged 15-17 years in the absence of circumstances making such a move or placement undesirable in a particular case, it may not be surprising that the claimant was 18 months older than other detainees.

A move for the claimant to the Atkinson Unit?

149. It is, in my view, clear that a move to Atkinson Unit (one of two "possible" places identified by Frances Jones, paragraph 34, and closer to her parents than Eastwood Park) was not rejected because it was thought that the Atkinson Unit was unsuitable for the claimant but because of the shortage of places in LASCHs and the need to move detainees (if feasible) to the Prison Estate because of the shortage of spaces. I reach that view given, in particular, the contemporaneous material (see paragraphs 20, 22 and 35). That material, in my view, plainly contradicts the assertion that the Atkinson Unit was rejected because of the history of bullying. There is no material to suggest that the Unit knew the age distribution at that time in Atkinson, a matter that would be important if considering whether the claimant would bully younger children there.

The claimant's best interests

150. The defendant now seeks to justify the claimant's move to the prison estate as in her best interests and Mr Kovats strongly supported this justification in argument. The contemporaneous material, whilst supporting the proposition that it was thought that it would be in the best interests of the claimant to leave Stamford House if another place was available, does not support the proposition that the decision maker considered or concluded that it was in the claimant's best interests, at the age of just 16, to move into the prison estate with fellow prisoners on the same wing aged up to and including 20 years old and meeting fellow prisoners over 18 in education classes.
151. Whilst accepting that once a 15-17 year old has been placed in prison, there may be advantages, as Caroline Rowe argues, in such age-mixing if the number of under 18s is small, that is a long way from saying that it is in the child's interest to be placed there. Before deciding whether it was in the claimant's best interests to go to Eastwood Park, the material referred to in paragraphs 32 and 33 would have to be considered, as well as the regime at Eastwood Park, which, as I have shown, had been so criticised by the Inspectorate. Indeed the argument now being put forward that it is in the best interests of some under 18s to be in prison, runs, as Mr Wise argues, contrary to the ministerial policy to remove them from the prison service and contrary to that part of PSO 4950 (paragraph 116 and following) devoted to the vulnerable characteristics of under 18 year olds, to their needs and how those needs should be met. I give one example. It being necessary: "To ensure that people, including contract staff, recruited or selected for work which will involve them in sustained and unsupervised contact with young women are suitable for that role" (paragraph 120), it is difficult to see how it can be said to be in the best interests of a 16 year old, such as the claimant, to spend a considerable amount of time on association with those 18 and over but under 21, as the claimant describes (a description not substantially in dispute).
152. It follows that the reference to "best interests" in Article 37(c) (paragraph 91 above) and the reference to the "mutually beneficial" mixing of adults and children in the reservation (paragraph 93) are not, in my view, relevant to the decision in this case to transfer the claimant to Eastwood Park.

Why was the claimant moved to Eastwood Park?

153. The claimant was, in my view, moved to Eastwood Park because of the need to or perceived need to make beds available in LASCHs and STCs and because it was thought that there was no good reason (paragraph 146) why she should not be moved. Her best interests were not a factor except to the extent it was concluded that there was no good reason for her not to be moved to the Prison Estate. Indeed when Mr Le Maréchal wrote to Stamford House on 22 April, he was unaware, apparently, that the claimant was shortly due to sit exams there.

The transfer to Eastwood Park and the UNCRC

154. If (and I return to this below) it is appropriate to test the move against the UNCRC, then, it follows that, subject to the reservation, the transfer to Eastwood Park would be a breach of Article 37(c). I turn to the reservation (paragraphs 93 and 95). Was there a lack of suitable accommodation or adequate facilities for a particular individual, i.e. the claimant, in any institution in which under 18s are detained?
155. On my analysis of the reasons for moving the claimant from Stamford House, that Unit did not provide suitable accommodation for her. The relevant STCs were too far away given the need to place the claimant near her parents.
156. However, given the absence (as I have found it) of any proper analysis at the time of the decision of the suitability of the Atkinson Unit for the claimant, it seems to me that it is not possible to conclude that there was a lack of suitable accommodation for her there. On the other hand, if proper consideration had been given, it seems likely that the decision would still have been not to place her there. The lack of space in LASCHs and STCs because of the decision to make and keep space available for younger detainees, would have resulted in a lack of accommodation, let alone suitable accommodation, for her in any institution in which under 18s were being detained. I should add that only 3 female detainees were in fact moved (although, as I have said before, I do not know how many were sent directly to prison on being sentenced or were in prison on remand and remained in prison after sentence).
157. But that lack of space was, so it seems to me, an inevitable result of not making more space available for females under 18 or not taking earlier enough other steps to free up space, against the background in this case of what appears now to have been a temporary crisis (see the figures September 2003 in paragraph 48).
158. Does the reservation permit the UK to rely on its own "failure" to keep female under 18s out of prison? The material in this case shows that the defendant believes the answer to this question is "Yes".

Section 92 and the UNCRC

159. Mr Wise submits that in enacting section 92, Parliament intended to legislate consistently with the United Kingdom's treaty obligations and that therefore, when exercising his powers under section 92, the defendant should act consistently with the UNCRC. Mr Kovats submits that section 92 merely consolidates section 53 of the CYPA 1933 and that Parliament did not therefore intend that the defendant should exercise his powers in accordance with the Convention. I do not need to reach a concluded view about this argument because of my conclusion on his second argument. It is sufficient to say that I have doubts about it. It seems to me that it is arguable that Parliament when giving a power to a minister to make a decision intends that the decision will be made taking into account policies etc current at the time of the decision.
160. Mr Kovats secondly submits that the effect of Mr Wise's argument is to incorporate the UNCRC into English domestic law by the back door, something which offends the well-known principles laid down by the House of Lords in R v SSHD ex parte Brind [1991] 1 AC 696. He submits that the proper approach is that laid down against the background of Brind by the Court of Appeal in R v SSHD ex parte Ahmed and others [1999] IAR 22, 36-37. Lord Woolf MR, with whom the other two members of the court agreed, found "wholly convincing" the approach adopted by the High Court of Australia in Minister of State for Immigration and Ethnic Affaris v Teoh [1995] 183 CLR 273. Lord Woolf said:

"The case was concerned with article 3 of the UN Convention on the Rights of the Child. In that context at page 291 on a judgment which I find wholly convincing, Mason CJ and Deane J said:

'Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act (45), particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision makers will act in conformity with the convention (46) and treat the best interests of the children as 'a primary consideration'. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the convention or should personally entertain the expectation: it is enough that the expectation is reasonable in the sense that there are adequate materials to support it …

The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door.' (emphasis added)

If it was necessary for me to do so I would also happily adopt the approach of Toohey J in the same case at pages 300 –302."

161. Lord Woolf then went on to say that there were insuperable difficulties in the way of Mr Khadri obtaining any benefit for his clients (the applicants) from such a legitimate expectation. By making the two policies, the issue in that case, the Secretary of State had made clear his approach:

"This being so, as long as those policies are policies which he can legitimately have, it cannot be said that by entering into the Convention, the executive has created a legitimate expectation which is in conflict with those policies."

162. Lord Woolf stated that to give effect to Mr Khadri's argument "would be to make the Convention part of our domestic law by the back door and this is something which cannot be done."
163. In the light of this case, I examine the policies to see whether the transfer to Eastwood Park was consistent with the policies? If the answer to that is "Yes", then that could still leave the question whether the policies are consistent (as the defendant believes them to be) with the UNCRC and with the reservation. As Mr Kovats argued, however, it seems to me that, even though the issues in this case has been very wide ranging, they do not encompass this issue. The relief sought relates to the lawfulness of the transfer having regard to the policies, not to whether the policies themselves are consistent with the UNCRC and with the reservation.

The placing of sentenced females aged 15 or over and under 18 year in the Prison Estate

164. Before looking at the particular position of the claimant, I look at this class, choosing 15 and over because sentenced females under 15 are not (except perhaps in very unusual circumstances) placed in prison.
165. On 8 March 1999 Mr Straw made it clear that, at least in the short-term, "17 year old women, and other young women for whom other accommodation is not available" will be held within the Prison Service (paragraph 103 above) albeit in discrete units with under 21 year olds. He also said that it was the government's intention to place sentenced 15 and 16-year-old girls in available non-Prison Service accommodation, when the detention and training order was in force. Although to use Simon Hickson's words "the Ministerial statement was made in March 1999 in good faith" (paragraph 106), it was not possible to fulfil the intention (see paragraphs 104 and following). In June 2002 (at a time when the claimant was being transferred to Eastwood Park), the UK confirmed to the UN CRC that it "was not yet able to set a date completely ending the use of adult prisons for juveniles". (paragraph 100). In 2003 the Youth Justice Board "announced the intention by a specific deadline – the end of 2003 – to take under 17 year old juvenile girls out of Prison Service custody" (paragraph 106).
166. The placing of those sixteen and under into prison in 2002 in the manner which I have described is not consistent with the stated intention. On the other hand the policy envisaged that at least in the short-term, "young women" aged 16 and under for whom accommodation is not available, may be held in prison, as well as 17 year olds. Given that the Home Secretary was expressing only an intention, given the elasticity of the word "short-term", and given the subsequent clear intention to continue with the arrangements for under 18 year olds, it would not, I believe, be open to this Court to give a declaration that the placement of 16 year olds and under in prison in 2002 was contrary to the policy announced in 1999.
167. I turn to PSO 4960 which applies to those detained under section 92 issued 9 May 2001 and its introductory words (paragraph 108 above): "Girls below the age of 18 and boys below the age of 15, will, as a general rule, continue to be placed outside the Prison Service Estate, either in local authority secure units or secure training centres" (underlining added). In my view this is not an accurate description of what was happening at the time to females aged 15 and over having regard to the figures for the period (paragraph 48 above) and even allowing for the April 2002 "bulge". I do not know, as I have said before, how many under 18 females in prison at this time were on remand (to which prisoners PSO 4960 does not apply) or subject only to DTOs. Likewise the following in 4960 is not, in my view, accurate (paragraph 111): "Females under the age of 18 "will, in the normal course of events and subject to individual assessment, be placed in LASUs in line with the priorities of the Youth Justice Board" (underlining added).
168. However, the introductory words are inconsistent with Annex A of PSO 4950 (Regimes for young women under 18 years old) issued 11 February 2000 some 15 months earlier and still in force, entitled which states: "In general those aged 15-17 will serve their sentence in YOls" (paragraph 121).
169. Whereas a declaration could be given along the lines of my conclusion in paragraph 167, I do not see how it would advance the claimant's case, the passages in 4960 to which I refer in paragraph 167 being inconsistent with Annex A of 4950 and, in my view, quite obviously inconsistent with what was actually happening. One can fully understand the concerns and frustration expressed by Frances Crook in paragraph 145.

Was the transfer of the claimant herself to Eastwood Park consistent with the defendant's policy in paragraph 5.4.2 of PSO 4960 and that part of Annex A in PSO 4950 concerned with the welfare of children?

170. I have already concluded that the claimant was moved to Eastwood Park because of the need to or perceived need to make beds available in LASCHs and STCs and because it was thought that there was no good reason why she should not be moved. Before transferring her to Eastwood Park did the defendant act in accordance with paragraph 5.4.2 (1/69)?
171. On 26 February it is noted (paragraph 20 above) that the claimant "does not display any aspects of vulnerability". In his second witness statement Mr Le Maréchal wrote that: "Had there been any concerns that the clamant was vulnerable or would be at risk or would be unable to cope in a Prison Service establishment such that a transfer to Prison Service accommodation would be inappropriate for her, Stamford House or the YOT worker would have raised those concerns" and they did not.
172. Paragraph 5.4.2 sets out factors which the officer making a section 92 decision must take into account. Mr Wise criticises the failure to attach weight to the issue of the claimant's vulnerability when in the company of persons with a stronger personality than her own (paragraphs 32 and 33) and the lack of contemporaneous documents in which her suitability for move to a prison is considered in any detail. I see force in that. Nonetheless that vulnerability must be typical of many of those with a similar age and background to that of the claimant and, given the pressure on places, would not, in my view, have led to a different decision. The move was, in my view, sufficiently in accordance with 5.4.2.
173. I turn to that part of Annex A which, apart from one "error" which I have noted, sets out in an uncontentious manner the obligations owed to children under the Children Act 1989 (paragraph 122) and "the central tenet of [which] is the principle that safeguarding a child's welfare is of paramount importance so that when decisions are made about a child, the primary consideration must be what is best to safeguard their welfare." This accords with Article 3 of the UNCRC which states that "the best interests of the child shall be a primary consideration." The UK reservation to Article 37(c) envisages that it is not the only consideration.
174. This principle would dictate, so it seems to me, a proper consideration of the Atkinson Unit which, because of the pressure on places, was not undertaken (paragraph 149). However, even if proper consideration had been given to sending the claimant to the Atkinson Unit, a move there would have been rejected because of the pressure on places.
175. In any event, the "best interests of the child", whilst a primary consideration is not the sole consideration, particularly where a child has committed a serious offence. I see no breach of the Children Act or Annex A in so far as it incorporates the principles of the Act.

Article 8 of the ECHR

176. I turn finally to Mr Wise's argument that the defendant acted contrary to Article 8 of the ECHR in placing the claimant in Eastwood Park. In the words of Brooke L.J. in R (on the application of SR) v Nottingham Magistrates' Court [2001] EWHC Admin 802, paragraph 63 and (2001) 166 Justice of the Peace Reports 132, at 148:

"Because a custodial sentence, or a secure remand, constitutes such a serious infringement of the right recognised by article 8 (1), Parliament has set a high hurdle to be crossed before courts can lawfully make an order of this kind."

177. Brooke L.J. further stated that "where children in custody are concerned the provisions of the [UNCRC] are available to inform the content of ECHR art.8". Brooke L.J. then examined the relevant rights of children set out in the UNCRC and mentioned article 3.1 and "the entitlement, when deprived of liberty, to be separated from adults unless it is considered in their best interests not to be so separated".
178.  Mr Wise submitted that article 3 (1) and article 37 (c) are available to inform the content of ECHR article 8. Whilst I agree that Mr Wise is right about the first of those two, I do not accept his argument about the second. As Mr Kovats points out, not only has the United Kingdom entered the reservation but there is no evidence before me that placing a sixteen year old girl into an institution like Eastwood Park would not be in accordance with the standards prevailing among member states of the Council of the Europe (V v United Kingdom (1999) 30 EHRR 121, at paragraph 72 of the judgment).
179. Whilst not accepting Mr Kovats' argument that the transfer of the claimant to Eastwood Park did not interfere with her article 8 (1) rights, the interference with the exercise of this right by sending her there is both in accordance with the law, necessary in a democratic society for the prevention of crime and proportionate. Section 92 authorised the Secretary of State to place the claimant in Eastwood Park and I have already found no breach of PSOs 4960 and 4950 in so far as it regulates the manner in which the Secretary of State must carry out that function. Her treatment in Eastwood Park is not only regulated by the PSOs but subject to the important principles laid down in R (Daly) v Home Secretary [2001] UKHL 26.
180. It seems to me that, given that the courts have the jurisdiction to scrutinise carefully any particular placement of a 16 year old in prison in accordance with the principles of judicial review and given the general conclusions which I have reached in this case, the decision to enable the Secretary of State to send a 16 year old to prison is, as Mr Kovats argues, a matter for Parliament and not the courts.

Conclusion

181. For these reasons, this application for judicial review fails. Whilst, as I have said, I understand the concerns and frustration of Frances Crook and the Howard League, I have reached the conclusion that the claimant is not entitled to relief by way of judicial review. It will be, I hope, of some consolation to her and others who share her views that there were 72 females (a significant reduction since the period with which this case is concerned) under the age of 18 in prison in September 2003 and that the YJB announced that by the end of 2003 all under 17 year old females would be taken out of the Prison Service estate (paragraphs 48 and 107). She is not alone in hoping that the UK is able to withdraw the reservation to Article 37(c) in the foreseeable future.

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MR JUSTICE HOOPER: Yes, Mr Wise?

MR WISE: Your Lordship will of course be aware that there are two potential grounds of appeal: firstly, reasonable prospects of success and, secondly, other reasons (Part 52). For the reasons outlined in the document, I do not need to take your Lordship through it by line by line. Your Lordship has the points, they were very much the points raised in argument. For those reasons, we would say that there are reasonable prospects of success, certainly not fanciful, and certainly, we would say, arguable. So we would say that on the first limb of the test, we would succeed. On the second limb, other reasons, there is a very clear public interest in this matter, my Lord, it concerns considerable more people than my client; albeit, as we have identified, there are a lot less, fortunately, young girls now in the situation than as hitherto been the case. But nevertheless we still have a significant number of young girls.

The issue has been a live issue for a number of years now. Albeit that certain measures have been taken by the Home Office and Prison Service to reduce the number of under 18s in prison, there remains a significant number. It is far from clear when all those girls will be out of the adult state. So there are good public policy reasons, we would say, also for the matter proceeding. There is also, of course, the very important issue of the position of the Convention on the rights of the child in domestic law. Your Lordship will see that I raise that issue in the proposed grounds of appeal, as I did in the hearing itself. We say that the United Nations Convention on the rights of the child informed Article 8 and, as such, following the Human Rights Act, becomes a part of the domestic jurisprudence. That is obviously a very important issue, my Lord, one that your Lordship had not felt it necessary to make any final determination of. But, nevertheless, it is a very important issue with far and wide-ranging consequences, both in the prison service arena and many other arenas where public bodies deal with children. So for that reason also, we would say there are good public policy reasons why this matter should proceed to the Court of Appeal.

MR JUSTICE HOOPER: Thank you.

MISS RICHARDS: My Lord, I do not propose to rehearse the arguments that were put forward by Mr Kovats and, indeed, that your Lordship has considered in the judgment. But what I would say in opposition to my learned friend's application is this. This was a case concerning a particular child, a particular set of facts and a particular situation which arose in 2002 as a result of particular pressures upon the Prison Service accommodation, which are no longer having the effect that led to this claimant's transfer on your Lordship's findings. This is a young girl who is no longer in prison, has not been so for a considerable period of time. It is not, therefore, in my submission, essentially the right case for my learned friend to raise these broader issues, or to have them ventilated before the Court of Appeal. Essentially your Lordship has, in my submission, correctly dismissed the case on its fact and it deals, in very large measure, with a historic position. There would not, in my submission, be a great benefit in taking this to the Court of Appeal.

MR JUSTICE HOOPER: Can I interrupt you?

MISS RICHARDS: Yes, of course. (PAUSE) My Lord, if this case went to the Court of Appeal it would be dealing with a case which was both academic, insofar as the individual claimant was concerned, and which was academic in broader policy terms, because it was dealing with a transfer that took place against a particular historic position which is no longer the current position. For that reason, in my submission, it would fail both limbs upon which permission to appeal can be granted and the matter should be left to the Court of Appeal to decide.

MR WISE: Very briefly, my Lord. The matter was academic in the strict sense when your Lordship heard the case: my client had been released from prison many months ago, I forget exactly when. The important point is that in very many important public law cases the particular circumstances become academic before the matter of public law and public importance is finally resolved. The law reports are replete with cases that are essentially academic to pursue because they are important matters that courts determine appropriate to finally resolve.

My learned friend says that the case is also academic in policy terms. We would strongly disagree with that. The matter is not academic in policy terms at all. There are aspirations to take under 18s out of prison service state, but it nevertheless remains their practice, albeit it is not entirely clear what their policy is there. Of course your Lordship identified in the judgment there was a breach of the policy in this case in any event. But, as evidenced by the continuing practice of the Prison Service, we would say this matter is not academic in that sense.

MR JUSTICE HOOPER: Thank you very much. Any other matters?

MISS RICHARDS: My Lord, the last matter is the question of costs. My Lord, the defendant does ask for an order that the claimant pay the defendant's costs. It is appreciated that the claimant is publicly funded. So the vast majority of the costs would be simply in determination of liability to be postponed in the usual way. But there was a cost order made in the claimant's favour on 18th July, arising out of the defendant's application to adjourn. Essentially the purpose in asking for the defendant's costs is to have the costs of the proceedings set off against the costs order made against the defendant on 18th July, as the court has power to do pursuant to Lockby(?) and National Bloods Transfusion Service.

MR JUSTICE HOOPER: Why did you have costs awarded against you?

MISS RICHARDS: When the case was adjourned in June it was relisted for a date initially in July, and the defendant made an application for an adjournment which was not heard----

MR JUSTICE HOOPER: To Stanley Burnton J.

MISS RICHARDS: That is right. And the adjournment application was successful, but the defendant was ordered to pay the costs of the application. I am afraid I was not present, but I have a copy of the order.

MR JUSTICE HOOPER: No. And if I have the power to do so, and were merely to change that order, that would achieve the same purpose as you are seeking to achieve by the order that you are asking for?

MISS RICHARDS: Yes, save I am not sure your Lordship would have the power to alter Stanley Burnton J's cost order, I think.

MR JUSTICE HOOPER: If you both consented?

MISS RICHARDS: Yes, if we both consented.

MR JUSTICE HOOPER: That is what you are trying to do?

MISS RICHARDS: The outcome of what I ask effectively is no order as to costs. In reality it simply means that the claimant pays the costs of the application having failed, but because she is publicly funded the only practical effect of it is to negate the effect of Stanley Burnton J's order.

MR WISE: Well, my Lord, I would invite you not to interfere with Stanley Burnton J's order either in substance or, in effect, that was an order made for a good reason.

MR JUSTICE HOOPER: Unless you consented, no, that must be right.

MR WISE: I do not need to go through the history of why Stanley Burton made that order. But your Lordship may recall that we were going to go to Luton to see your Lordship.

MR JUSTICE HOOPER: What do you then say about the application for costs?

MR WISE: So far as the application for costs is concerned, as my learned friend says, quite rightly, my client is publicly funded. So any application for costs against her would be unlikely to be successful. But when we look at this case in the round there are a number of features as to why an ordinary costs order should not be made. Firstly, your Lordship did identify that there were breaches of the Prison Service policy, which we had identified in our claim. So it is not one of those cases where a claimant has simply lost. We presented----

MR JUSTICE HOOPER: I understand what you are going to say. The whole purpose of this is to prevent you enforcing an order against the defendant; that is what all this is about.

MR WISE: The cost aspect?

MR JUSTICE HOOPER: Yes, preventing you from actually getting the costs out of the defendant for that abortive hearing in July, that all that is between you. Miss Richards is only asking for costs because of that outstanding costs order. I have that right, have I not, Miss Richards?

MISS RICHARDS: Yes, that is the practical purpose in seeking costs as opposed to the, sort of, jurisprudential basis which is that essentially the claimant lost. Were it not for that, it is possible, but I cannot say that it is definite, that the defendant would not ask for costs because it would have no practical purpose.

MR JUSTICE HOOPER: So if you were to agree now not to enforce that order of costs for the mid-July hearing, then that would be the end of the matter?

MR WISE: Yes.

MR JUSTICE HOOPER: If you would just like to ask your solicitor, otherwise it will be a lot of going round the houses to achieve nothing except for saving the defendant having to pay something.

MR WISE: Olive branches all around, my Lord. We are happy to proceed on the basis that there is no order for costs.

MR JUSTICE HOOPER: Would you both draw that up in the appropriate language. So no order for costs upon you undertaking not to enforce that order against them.

MR WISE: Save for detailed public funding?

MR JUSTICE HOOPER: Of course, yes. There is no certificate on the file.

MR WISE: There is one, but we have one in court anyway.

MR JUSTICE HOOPER: Anything else I need to do?

MR WISE: No other matters, my Lord, no.

(Break)

MR JUSTICE HOOPER: I hand down the judgment. This application for judicial review does not succeed. Thank you.

MR WISE: My Lord, there was an agreed form, which I passed to the associate, in roughly the terms that we discussed earlier.

MR JUSTICE HOOPER: Mr Wise, I considered your grounds carefully, and for the reasons which I have set out shortly on the form, I decided not to grant you permission. Should the matter go to the Court of Appeal in the sense of permission, I do think that some radical reorganisation of the documents will be necessary. I mean it may, I do not know, it is the kind of case that you both accept that I have accurately stated, then you their Lordships will not need to start looking at all those witness statements and secondary witness statements and third witness statements.

MR WISE: That is absolutely correct, my Lord.

MR JUSTICE HOOPER: You might both get a better welcome. Thank you both, and thank Mr Kovats too.