QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R(ON THE APPLICATION OF CAROL POUNDER)
|- and -
|HM CORONER FOR THE NORTH AND SOUTH DISTRICTS OF DURHAM AND DARLINGTON
|YOUTH JUSTICE BOARD
||1st Interested Party
SERCO HOME AFFAIRS LIMITED
2nd Interested Party
LANCASHIRE COUNTY COUNCIL
3rd Interested Party
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Richard Perks (instructed by Hewitts Solicitors) for the Defendant
Wendy Outhwaite (instructed by the Treasury Solicitors) for the 1st Interested Party
Samantha Leek (instructed by Lupton Fawcett Solicitors ) for the 2nd Interested Party
Hearing dates: 18th, 19th December 2008
Crown Copyright ©
The Honourable Mr Justice Blake:
The issue of legality of restraint at the inquest
"Rule 36 - Removal from Association
(1) Where is appears to be necessary in the interests of preventing him from causing significant harm to himself or to any other person or significant damage to property that a trainee should not associate with other trainees either generally or for particular purposes (the director) may arrange for the trainees removal from association accordingly.
(2) The trainee shall not be removed under this rule unless all other appropriate methods of control have been applied without success.
Rule 37 – Use of Force
(1) An officer in dealing with a trainee should not use force unnecessarily and, when the application of force to a trainee is necessary, no more force than necessary shall be used.
(2) No officer shall act deliberately in a manner calculated to provoke a trainee.
Rule 38 – Physical Restraint
(1) No trainee shall be physically restrained save where necessary for the purpose of preventing him from –
a. Escaping from custody
b. Injuring himself or others
c. Damaging property or
d. Inciting another trainee to do anything specified in paragraph b or c above.
And then only when no alternative method of preventing the event specified in any of the paragraphs a-d above in available.
(2) No trainee shall be physically restrained under this rule except in methods approved by the Secretary of State and by an Officer who has undergone a course of training which is so approved.
(3) Particularly the very occasion on which a trainee is physically restrained under this rule shall be recorded within 12 hours of its occurrence."
"Powers and duties of custody officers employed at contracting out secure training centres
(1) a custody officer performing custodial duties at a contracted-out secure training centre shall have the following powers, namely –
a. to search in accordance with secure training and rules any [person] who is detained in the secure training centre and
b. to search any other person who is in or is seeking to enter the secure training centre, and any article in the possession of such a person.
(3) a custody officer performing custodial duties at a contracted out secure training centre shall have the following duties as respects [persons] detained in secure training centres namely –
a. to prevent their escape from lawful custody
b. to prevent or detect and report upon the commission or attempted commission by them of other unlawful acts.
c. to ensure good order and discipline on their part and
d. to attend to their well being.
(4) the powers conferred by subsection (1) above and the powers arising by virtue of subsection (3) above shall include power to use reasonable force where necessary."
"Physical force will be use(d) only:
-to prevent a trainee from escaping
-to prevent a trainee from harming him/herself or others
-to prevent a trainee from damaging property
-to prevent a trainee from inciting another trainee to harm him or herself or others or damage property
Physical force will not be used for any other reason or simply to obtain compliance with staff instructions, it will be a measure of last resort."
"Q: I'm having problems reconciling this quote at s.9(3) of the 1994 Act, PCC 2003Manual, It seems like the first one gives you authority to do certain things , and yet the second one doesn't , so in a legal sense, does the Act take priority across the manual, because its just the Manual?
A: Yeah…The Act is a piece of legislation ..its the legislation that empowers everything else".
The Coroner's ruling
"What I propose to do therefore is to adopt a line similar to that suggested by Mr Freeland and to explain to the jury that there is an issue about what the staff to do in …2004. And that is clear from the questioning that they have heard, and this may then be the subject of further comment in due course. But I think that to say that it is legal or illegal or unlawful, is likely to hamper any inquiry rather than aid it. And if I am wrong on that then again, somebody will no doubt in time tell me if it's thought necessary."
"I think the strongest argument for not allowing Mr Hermer's application for an adjournment come in effect from Mr Hermer himself. One in particular that is how I look at it. If it is decided by another tribunal that the restraints were unlawful then that may well colour the opinions the jury have of the witnesses that gave evidence to them. I do not know what view the jury have taken of the credibility of the witnesses that they had before them. If they have formed a view and then are subsequently told what they were saying is right or wrong depending on which witness your thinking about then that could lead to all sorts of problems in the jury trying to decide on credibility of evidence. If it is decided that restraint is unlawful then, using Mr Hermer's phrase, the inquest may well be fatally flawed and whilst he might not wish to examine the further questions and re-examine witnesses then I have already indicated I might wish to do so, but it also may then be suggested in the interested of justice that the rulings and limitations I placed on counsel with regard to various lines of questioning were wrong and therefore it is possible with the benefit of hindsight those rulings might be wrong and in the interests of justice therefore it might well be beneficial for there to be a fresh hearing when all the witnesses could be re-examined and all the relevant points heard and examined. If it had been clear at the time what the relevant points were. On the other hand if matters went to the administrative court and the rulings were that restraints were lawful then all the risks in delay become unwarranted."
The Scope of the Inquest
"In this country… effect has been given to that duty for centuries by requiring such deaths to be publicly investigated before an independent tribunal with an opportunity for relatives of the deceased to participate. The purposes of such an investigation are clear: to ensure insofar as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrong doing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relatives may at least have the satisfaction of knowing that lessons learnt from his death may save the lives of others."
"28 Whilst it is not possible at this stage confidently to provide a comprehensive list of all the issues which might properly fall within in the scope of the inquest the prison service submits that on the evidence as currently constituted, the following matters are likely to be of central importance:
... (vii) the incident of the 8th August 2004 during the course of which Adam was restrained and taken back to his room by staff including the decision to resort to Physical Control and Care, the techniques and the impact of the incident on Adam"
On 6 November 2006 in further written submission on behalf of the YJB it said
"9… whilst it is beyond doubt that the circumstances of Adam's restraint under PCC prior to his death fall within the scope of the inquest there is a need, we would submit, to focus on the issues arising from the restraint which properly fall within the type of investigation envisaged in Middleton. In the YJB submission those issues are as follows:
(i) the effect that the restraint had on Adam's emotional state and the extent to which it is possible that it may have contributed to his decision to self-harm.
(ii) whether the staff involved had acted appropriately in restraining Adam on the occasion in question and in particular whether the techniques they used were suitable and proportionate.
(iii) insofar as it may be considered that the restraint was not appropriate (or appropriately conducted) some investigation for the reasons of that may be warranted. For example it may be that the adequacy of the training of the staff involved is found to be relevant."
In written submissions dated the 13 November 2006 Mr Freeland QC on behalf of Serco submitted
"11… it is agreed that the circumstances of Adam's restraint under PCC prior to his death falls within the scope of the inquest as does whether the staff acted appropriately in restraining Adam on the occasion in question and whether the techniques that were used were proportionate."
The Coroner agreed with those submissions and questions about how and why Adam came to be physically restrained were permitted. However, as previously noted the Coroner declined to rule on whether there was authority to use force and restrain Adam, and whether the staff who took hold of him acted lawfully. It was said to be sufficient if the jury had the opportunity to comment on the facts and it was not necessary for them to be instructed on the legality of the restraint for them to do so.
"Rule 38 was very clear and specific about the circumstances under which PCC could be used. However, the 1994 CJPOA did give this authority to use reasonable force to maintain order and discipline and the advice that the YJB were giving at the time was that reasonable force could be used under those circumstances and that our preference was for PCC to be used in the first instance because staff had been trained in that technique…That was our view at the time. Having said that I would say I think there's some confusion around our view but that's my recollection of how it was".
"if children were assaulted and it was happening and we did nothing about it, that would be, I think a breach of our responsibilities, definitely" (2/6/34)
He accepted that such a state of affairs would be a failure on the part of the YJB, although did not agree with either of the accompanying adjectives suggested by Mr. Hermer namely either 'scandalous' or 'gross' (T2/6/35).
"Question 6: Were Hassockfield staff appropriately trained in matters of the HRAT, self-harm, and suicide prevention or awareness and PCC techniques.
Question 7: Was first response an appropriate means of response by Hassockfield to the situation involving Adam on the 8th August and if not why".
Question 8: Did Adam present as an increased risk of suicide and/or self harm at any stage after the termination of the HRAT on the 29th July bearing in mind in particular the events of 7th and 8th August".
"Number 9 is asking you to describe the incident that took place on the 8th August 2004 that led to Adam being restrained, the methods of the restraint used to tell the story in other words. What are your findings of fact relating to that incident? We have looked at systems fairly extensively.
Number 10 is a question about systems. It says 'do you identify any system failures in the Hassockfield regime which contributed to Adam's death' so the failure has to be linked to the contribution'. Remember what it says on the front page of the form, contributes, not in a major or sole cause, nevertheless a cause which is more than minimal or trivial.
You have got to decide that and the last question (11) gives you nearly free rein, 'are there any other matters in the evidence you have heard which contributed to Adam's death' always bearing in mind the type of words you can and cannot use. Is there anything else, in other words. Is there anything else that those questions don't cover that you feel contributed in that (sic) way to Adam's death. And finally, not surprisingly if there are any, tell me what they are.
So those are the 11 questions that I am asking you to deal with. Okay. There is one thing I want to make clear to you now and we have heard a lot of evidence about the legality of restraint, how Section 9 of the Criminal Justice and Public Order Act interact with some of the STC rules. I am giving you no direction as to whether that is lawful or not. You do not have to decide. You must not decide whether that is lawful or not. That question is not with you. I am not giving you that. I have no intention of giving you that as a matter to decide, it is a matter of law and that is for me. You are to deal with matters of fact. What happened happened, be it in hitting his hand on the wall, playing football, going to his room, what happened happened. You are to decide what happened. You are not to put a label on that issue, particularly on that one of restraint, as to whether it is lawful, authorised by rules, whatever expression you think is the appropriate one, you are not to decide that. You steer away entirely from that. So I need to make that very very clear to you… just because something comes up as part of the questioning does not mean it comes to you to adjudicate upon. You have to look at matters that contribute to Adam's death, no doubt about that, but what I am directing you very clearly is that you are not to decide or give any consideration to whether those actions, in particular involving the restraint on the ear (sic) were lawful or not. Nothing to do with you."
"5. The evidence clearly indicated that there was confusion between PCC instructors, PCC trainers, and Care Officers with regard to PCC its application, and the reasons therefore and when if ever guidance given in the appropriate manuals could be disregarded.
10. An urgent review should be undertaken to clarify the inter-relationship between the Criminal Justice and Public Order Act 1994 (section 9), the Secure Training Centre Rules issued there-under and the Directors rules to avoid any confusion whatsoever. It must be seen as essential that there must be no ambiguity in anyone's mind, young person, staff, management or those in the YJB or indeed Government as to when the use of restraint or force to maintain good order and discipline or for compliance reasons is authorised".
"(A): It would be counterproductive all round in that it wouldn't in the long term end in the result that people wanted which would be for children to behave better and not cause harm to others and there would now be evidence that in a small group of these children it would make them more likely to behave in a aggressive fashion over time.
(Q): What would your concerns be as a child and adolescent psychiatrist about the use of a technique that causes pain, the nose distraction technique that is expressly designed to cause pain, one generally about that technique and secondly in the context where it shows to regularly cause injury to regularly cause bleeding to a child's nose?"
i) It reminded itself of the general position under Article 3 of the ECHR that physical force in respect of a person deprived of his liberty that is not strictly necessary diminishes human dignity and is in principle a violation of Art 3 -.
ii) It noted that the House of Lords in its judicial capacity has declared that Article 3 when applied to children in custody had to be interpreted consistently with the provisions of the UN Convention on the Rights of the Child 1989 in particular Articles 37 and the views of the Committee on the Rights of the Child as the expert monitoring body charged with the implementation of the state's obligations under the Convention .  It further noted that in General Comment 8 of the UN Committee on the Rights of the Child indicate that deliberate infliction of pain is not permitted as a form of control of juveniles .
iii) It concluded that both pain compliance control techniques, and restraint generally when applied for the purposes contemplated in the amended rules would violate the principles of Article 3, when applied to children  to .
iv) It rejected a submission on behalf of the Secretary of State that any over-broadness of the amended Rules could be cured when read down in the light of detailed policy instructions that the Secretary of State for Justice would give to staff operating the rule  to .
v) It concluded that in any event the advice given in the Code of Practice about restricting the use of restraint was uncertain and unsatisfactory and had not been changed to apply to the new regime of the amended rules broadening the power to use restraint in support of good order and discipline  to .
vi) It rejected the only evidence in the case in which it was suggested that use of restraint was strictly necessary to enforce good order and discipline  to . This evidence was a statement of Mr. Wilson-Smith director of Hassockfield STC. The Court was critical of this evidence and its consistency with the law at the time of Adam's death . It noted in particular that the view of the law taken by Mr. Wilson Smith and leading counsel for Serco at the Rickwood inquest was wrong .
vii) It concluded that the amendments could not be justified as strictly necessary to maintain discipline . The amended rules therefore violated both Article 3 and Article 8 ECHR.
This court was informed that an application by the Secretary of State to appeal to the House of Lords against this decision has been refused. The decision of the Court of Appeal is therefore final and will be examined further in the following section of this judgment when consideration is given to the law.
The law relating to restraint and the use of force
Was the Coroner correct in his ruling about the legality of the force used?
"lately over to the past two months or so things have been very hard for me and its all just got to the point where my head goes".
In his statement written in the same window of opportunity of approximately 6 hours, he describes how he queried the order to go to his room, the response of the staff, the physical restraint, the pain to his nose and how he tried to bite back because they were really hurting him.
"My nose started bleeding and swelled up it didn't stop bleeding for about one hour and afterwards it was swelled badly and really sore and hurting me a lot when I calmed down I asked them why they hit me in the nose and jumped on me they said it was because I wouldn't go in my room so I said what gives them the right to hit a 14 year old child in the nose and draw blood and they said it was a restraint" (emphasis supplied)
If Adam's question had been answered by the Coroner or left open to the jury to consider with appropriate directions, the answers would have been clear. There was no right to hurt such a child in these circumstances. In my judgment it is fanciful to suppose that such an answer could have had no impact on the jury's consideration of factors contributing to the death.
Note 1 Art 37 UN CRC provides in part as follows:
“States Parties shall ensure that:
no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment…
(c) every child derived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in particular in a manner which tales into account the needs of person or his or her age” [Back]
Note 1 Art 37 UN CRC provides in part as follows: “States Parties shall ensure that: no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment… (c) every child derived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in particular in a manner which tales into account the needs of person or his or her age” [Back]