England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/04/2017

Mr Justice Sweeney:

Introduction

1. This is an appeal by way of Case Stated against the decision of Justices sitting in the Ealing Youth Court who, on 3 February 2016, convicted the Appellant of three offences of assault by beating, contrary to s.39 of the Criminal Justice Act 1988. The assaults were alleged to have been committed during the course of two incidents on 26 December 2015 (when the Appellant was aged 16) and in relation to each offence the victim was said to be a member of staff at the Children's Home where the Appellant was then residing.
2. Given the Appellant's age and circumstances, including the fact that she is still aged only 17 now, I make an anonymity order in relation to her – prohibiting the publication of any material which might lead to her identification. I have anonymised this judgment accordingly, and will refer to the Appellant as such or as 'A'.

Background

3. Exceptionally, and for reasons that will become obvious, it is necessary, as to the background, to record both the relevant aspects of the Case Stated and some additional undisputed facts that were relied upon during submissions in this Court.
4. The Children's Home was run by a charity and looked after girls at risk of Child Sexual Exploitation. The relevant local authority placed 'A' at the Home on 27 October 2015. The three members of staff at the Home involved in the incidents on 26 December 2015 were Mr Mackay and Mr Christensen (the first incident), and Mr Kesrouani (the second incident). Each was then in his twenties.
5. At a hearing on 30 December 2015 the Appellant pleaded not guilty to all three charges and her solicitor indicated to the Court, via entries that he made in a Preparation for Effective Trial Form, that:

(1) There was no dispute that there were two incidents involving (between them) the three complainants, but there were differing accounts of the incidents.

(2) The Appellant was acting in self-defence against Mr Mackay and Mr Christensen and denied spitting in their faces as alleged, or biting Mr Mackay in the stomach.

(3) The Appellant did not assault Mr Kesrouani and maintained that his account was false.

6. The trial was fixed for 3 February 2016. In the interim, no further details as to the issues were provided by the Appellant's solicitor.
7. A few days prior to the trial date, Mr Manning was instructed to appear on the Appellant's behalf. He decided to raise the following further issues, namely:

(1) To any extent that it was asserted that 'A' had been placed in the Children's Home under the provisions of s.20 of the Children's Act 1989, no evidence had been put forward as to whether her parents had consented (albeit, I would add, that in Mr Manning's skeleton argument in this Court it was asserted that A had been abandoned by her parents – one of whom was thought to be in Kenya and the other in the United States); nor whether they had the capacity to consent, and therefore there was insufficient evidence on which to conclude that 'A' was subject to lawful s.20 accommodation.

(2) If that was correct, then any use of force to restrain 'A' had been unlawful and 'A' must have been justified in defending herself against Mr Mackay and Mr Christensen during the first incident.

(3) Even if that was not correct and 'A' was subject to lawful s.20 accommodation, having regard to Regulation 20 of The Children's Homes (England) Regulations 2015 (SI 2015 No.541), restraint in relation to a child was only permitted to:

(a) prevent injuries;

(b) prevent damage to property; or

(c) in the case of a child accommodated in a secure children's home, to prevent the child from absconding.

(4) Given that the prosecution witnesses in relation to the first incident were saying that the purpose of restraint was to prevent 'A' from absconding, and that the Home was not a secure one, the restraint was unlawful, and 'A' had thus been entitled to use force in defending herself.

(5) As to the second incident, which involved an allegation that 'A' had thrown a large bottle at Mr Kesrouani hitting him on the head and causing him to feel disorientated, there was (given the nature of the Home and the likely conduct of those accommodated there) implied consent such that the alleged conduct did not amount to an offence.

8. No notice of these issues was given prior to the trial hearing on 3 February 2016, but they were revealed by Mr Manning at an early stage of that hearing. Given that the prosecution witnesses were present, that 4 hours' court time had been set aside, and notwithstanding the obvious breaches of the Criminal Procedure Rules involved in not identifying and revealing the new issues sooner, the prosecution did not seek an adjournment and thus the trial proceeded.
9. Mr Mackay, Mr Christensen and Mr Kesrouani all gave evidence that they were working as children's residential workers and talked about the Home as being a care home for girls at risk. Mr Mackay said that he was working for a charity which worked with local authorities and provided homes for children in care. Mr Christensen was asked why 'A' was the subject of a "Section 20", and said that it was because she had been the victim of sexual exploitation and abuse.
10. At the end of the prosecution case Mr Manning made a submission of no case to answer along the lines set out in paragraph 7 above. That was rejected.
11. 'A' then gave evidence.
12. During the course of his closing address, Mr Manning repeated the above-mentioned arguments contending, in particular, that Mr Mackay and Mr Christensen had restrained 'A' to prevent her from absconding from the Home and that that restraint was unlawful as the Home was not a secure children's home but rather, as described in evidence, a "semi-secure" home; that in relation to Mr Mackay and Mr Christensen 'A' had acted in self-defence; and that in relation to Mr Kesrouani, whilst 'A' had ultimately admitted throwing the bottle, there was implied consent by Mr Kesrouani to a certain amount of rough and tumble contact in a residential setting involving children.
13. On behalf of the prosecution it was argued that there was nothing before the court to gainsay the lawfulness of the provision of 'A''s accommodation; that the primary concern of Mr Mackay and Mr Christensen had been 'A''s safety and wellbeing; and that their actions fell within Regulation 20(1)(a) of the 2016 Regulations – i.e. they had acted to prevent injury.
14. After receiving appropriate legal advice – in particular, as to the issues of self-defence (including the relevant aspects of s.76 of the Criminal Justice and Immigration Act 2008) and Regulation 20, the Justices (as already indicated above) convicted 'A' on all three charges. Subsequently, on 2 March 2016, 'A' was sentenced to a Youth Rehabilitation Order.

The Justices' findings of fact

15. The findings, as recorded in the Case Stated, but put into broadly, though not entirely, chronological order (with the relevant subparagraph letter in paragraph 7 of the Case Stated in brackets) were as follows:

(1) 'A' was being lawfully accommodated in a children's home under s.20 of the Children Act 1989 [a)].

(2) Mr Mackay stood in front of the door to prevent 'A' leaving the home. 'A' physically tried to punch him after which the restraint started [b)].

(3) 'A' used force in her attempt to get out of the care home. The force used was not in self-defence. She was not being attacked. She initiated the aggression [i)].

(4) Mr Mackay kept telling 'A' that he and his colleague Mr Christensen wanted to keep her safe and that they wanted her to stay in the house. 'A', however, was very upset and continued to insult them and scream [c)].

(5) 'A' bit Mr Mackay twice and scratched him [d)].

(6) Mr Christensen said to 'A' that he and Mr Mackay wanted her to be safe and not to go out but 'A' replied "Fuck off, you can't keep me here – I want to go out" [c)].

(7) 'A' then became abusive and started swinging her arms and she punched Mr Christensen several times with her arms. After this had happened, Mr Mackay and Mr Christensen held her. For that 20 to 30 seconds 'A' was being aggressive, she was screaming "You can't keep me in here, get out my fucking way" [f)].

(8) Mr Mackay and Mr Christensen's priority was to keep 'A' safe. They were sincerely working in the interests of 'A', and in order to protect her from exploitation. They held 'A' in an attempt to prevent her kicking, punching, and lashing out. 'A' continued to swear, yell, spit, and bite. Mr Christensen felt the spit on the side of his face and had bruising on his shoulder and arm from the biting [g)].

(9) Both Mr Mackay and Mr Christensen had been on a four-day course specifically to learn restraining techniques. Their restraint of 'A' was for the purpose of preventing injury to herself and them in accordance with Regulation 20(1)(a) of the 2016 regulations. This was both necessary and proportionate because of 'A''s aggression [h)].

(10) 'A' assaulted Mr Mackay and Mr Christensen by beating, as alleged. Those assaults were intentional and not in self-defence [j)].

(11) Later that day, after returning from the police station, 'A' threw a bottle at Mr Kesrouani after saying "If you do not let me leave I am going to kill you". 'A' threw the bottle at Mr Kesrouani and it hit his head, causing him pain and to feel disorientated. This was an intentional assault by beating and was not in self-defence. We rejected the argument about implied consent [k)].

The questions posed

16. The questions for the opinion of this Court are:

(1) Were we entitled to conclude that 'A' was lawfully accommodated under s.20 of the Children Act 1989?

(2) Were we entitled to find that 'A' did not act in self-defence?

(3) Were we entitled to find 'A' guilty?

The legislation and regulations relied on by the Appellant

17. Section 20 of the Children Act 1989 provides, inter alia, that:

"(1) Every local authority shall provide accommodation for every child in need within their area who appears to them to require accommodation as a result of –

(a) There being no person who has parental responsibility for him;

(b) His being lost or having been abandoned;

(c) The person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

…

(3) Every local authority shall provide accommodation for every child in need within their area who has reached the age of 16 and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

…

(5) A local authority may provide accommodation for any person who has reached the age of 16 but is under 21 in any community home which takes children who have reached the age of 16 if they consider that to do so would safeguard or would promote his welfare.

(6) Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child's welfare –

a) Ascertain the child's wishes and feelings regarding the provision of accommodation; and

b) Give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

(7) A local authority may not provide accommodation under this section for any child if any person who –

a) Has parental responsibility for him; and

b) Is willing and able to –

1) Provide accommodation for him; or

2) Arrange for accommodation to be provided for him,

objects.

(8) Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

….

11) Subsections (7) and (8) do not apply where a child who has reached the age of 16 agrees to be provided with accommodation under this section."

18. In his skeleton argument in this appeal Mr Manning underlined, amongst other things, that s.20(5) involves a discretionary power, that s.20(6) requires that the child's wishes should be taken into account, and that the courts do not tolerate any abuse of s.20 – see e.g. R (M) v Hammersmith and Fulham London Borough Council [2008] UKHL 14, and In the Matter of N (Children) (Adoption: Jurisdiction) [2015] EWCA Crim 1112.
19. He further underlined that "semi-secure" accommodation is not recognised at law, and that secure accommodation is governed by section 25(1) of the Children Act 1989, which provides that:

"(1) Subject to the following provisions of this section, a child who is being looked after by a local authority… may not be placed, and, if placed, may not be kept, in accommodation provided for the purpose of restricting liberty ("secure accommodation") unless it appears—

(a) that—

(i) he has a history of absconding and is likely to abscond from any other description of accommodation; and

(ii) if he absconds he is likely to suffer significant harm; or

(b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons.

…

(3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case.

(4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept.

….."

20. In his skeleton argument Mr Manning further underlined that by virtue of Regulation 3 of the Child (Secure Accommodation) Regulations [SI 1991 No.1505] secure accommodation cannot be provided in a children's home unless it has been approved by the Secretary of State for that purpose, and submitted that Regulation 5(2)(a) of the same regulations meant, in any event that, because of her age, s.25 of the 1989 Act did not apply to 'A'.
21. Regulation 20 of the Children's Homes (England) Regulations 2015 provides that:

"20.—(1) Restraint in relation to a child is only permitted for the purpose of preventing—

(a) injury to any person (including the child);

(b) serious damage to the property of any person (including the child); or

(c) a child who is accommodated in a secure children's home from absconding from the home.

(2) Restraint in relation to a child must be necessary and proportionate.

(3) These Regulations do not prevent a child from being deprived of liberty where that deprivation is authorised in accordance with a court order."

The Appellant's submissions

22. As to the first question, Mr Manning submitted in his skeleton argument, and by reference to various authorities set out therein, that:

(1) Whilst the local authority was under a statutory duty to provide 'A' with accommodation, the courts (as touched on above) do not tolerate the abuse of s.20 – especially not through delay on the part of the local authority. Nor do the courts tolerate abuse of the voluntary aspect of s.20.

(2) 'A' had been a resident at the home for over two months which was an abuse of the s.20 power to provide temporary provision of accommodation. There were no care orders or care plans in place regarding A and the use of s.20 was unlawful due to the length of time that had passed.

(3) Section 20 applies to local authorities not to a charity which could not exercise any of the powers thereunder – hence the use of s.20 by the charity was not lawful.

(4) There was no evidence before the court to establish that either the charity or the Home were registered Children's Homes, hence the Children's Homes (England) Regulations did not apply in this case.

(5) 'A' was deprived of her liberty in that she was not permitted to leave the Home – with that involving staff members physically preventing her exit and then forcibly restraining her in a hold where there was no entitlement for any person to deny her human rights and when there should have been special consideration for her background.

23. The first four of those submissions are clearly submissions that were not advanced before the Justices who therefore had no opportunity to consider and address them – whether at trial or in the Case Stated.
24. When this was pointed out to Mr Manning in argument, he candidly admitted (to his credit) a lack of familiarity with appeals by way of Case Stated. It should however be obvious that it is incumbent on the defence, having complied with the Criminal Procedure Rules by identifying the issues in the case in good time, to advance their full case at trial not, for example, to seek to rely on a Regulation at trial and then, on appeal by way of Case Stated, to seek to argue that, because of the absence of certain evidence at trial, that Regulation did not actually apply at all. If new arguments of the type summarised above are to be pursued the proper avenue of appeal is to the Crown Court, with timely notice of the new issues in advance of the hearing of the appeal – which is, of course, by way of hearing the case afresh. However, it having been decided in this case to pursue an appeal by way of Case Stated, that avenue is no longer open to the Appellant.
25. In those circumstances, in addition to the argument summarised in paragraph 23(5) above, Mr Manning advanced various other submissions, including that:

(1) Bearing in mind that 'A' was a child, any failure to comply with the Criminal Procedure Rules during the proceedings below should not be held against her. The prosecution should have sought an adjournment if they were placed in any difficulty by the late raising of the s.20 issue, but had chosen not to do so and so could not complain.

(2) Firth v Epping Magistrates Court v Director of Public Prosecutions [2011] EWHC 388 Admin (which was relied upon by the Respondent) was not applicable. There was no deliberate ambush by the defence, and 'A' was and remains young and vulnerable.

(3) The questions posed were, when considered against the questions that the Justices were asked to pose, overly simplistic.

(4) No documents had been produced in relation to the s.20 issue, and the fact that Mr Christensen believed that 'A' was lawfully accommodated under its provisions did not necessarily mean that she was.

(5) Notwithstanding the description of the Home (by one or more of the witnesses) as being "semi-secure" there is no such category of Home in law, and it was plainly not a "secure" Home.

(6) The fact that 'A', then aged 16, was at the Home because of her vulnerability to sexual exploitation meant that she was in something of a grey area, but the Local Authority still owed her a duty of care.

(7) Having regard to 'A''s personal history, the amount of force that she used was subjectively reasonable and proportionate (albeit that he then accepted that the law is that whether self-defence was necessary, and whether the force used was reasonable, are to be objectively judged, with appropriate allowance for the agony of the moment, in the circumstances as the alleged offender subjectively believed them to be).

(8) Whatever test was applied, 'A' (who had no previous convictions) had been unlawfully restrained by two adult males (whose purpose had been to stop her from absconding when that was not permitted by Regulation 20(1)(c) as the Home was not a "secure" one) in a figure of four restraint which had been painful and, in those circumstances, any biting or hitting by her was objectively reasonable force used in necessary self-defence in response to their unlawful battery of her. The Justices had sidestepped the real issues via their findings of fact which were not in keeping with, or supported by, the evidence (albeit that there was no application to send the Case Stated back for amendment or clarification).

(9) The assertion that the witnesses were intending to prevent harm coming to 'A' via sexual exploitation was illegitimate as she was over the age of sexual consent, and that was not how the case was put, or what the witnesses said.

(10) As to the second incident, there had to be a degree of implied consent given by those who worked in such a Children's Home.

(11) H v Crown Prosecution Service [2010] EWHC 1374 (which was relied upon by the Respondent as to the absence of implied consent) was not analogous and should be disregarded. It involved an attack with a hammer on a school teacher at a school. Whereas here the Court was concerned with boisterous behaviour, and the throwing of a two-litre bottle of Fanta should be regarded as de minimis. It was akin to a game of football in which the ball was kicked and hit a member of staff on the back of the head. It was not a crime.

26. On behalf of the Respondent Mr Chinweze submitted, amongst other things, that:

(1) The late raising of the s.20 issue had amounted to an ambush by the defence. It was first raised on the day of trial and with all the witnesses at the Youth Court. The culture now is that a case should proceed if it possibly can, and so no application was made for an adjournment.

(2) In any event, the Justices' finding of fact that A was being lawfully accommodated under s.20 was supported by evidence – both direct and inferential (as set out by the Justices in paragraph 7a) of the Case Stated).

(3) It was clear from paragraph 7i) of the Case Stated that 'A' had initiated the aggression (attack) in order to get out of the Home; that she was not being attacked at the time; and that the force that she had used was not in self-defence.

(4) It was equally clear from the combination of paragraphs 7b) to 7f) that the assaults by 'A' on Mr Mackay and Mr Christensen were carried out prior to any restraint of her by them.

(5) Likewise, it was clear that the purpose of that restraint was to prevent injury to both themselves and 'A', which was both necessary and proportionate because of 'A''s aggression, and (thus) in accordance with Regulation 20 of the 2015 Regulations.

(6) Whilst 'A' was of an age to give consent to sexual activity, being under 18 she still required protection from being made the subject of indecent photographs .

(7) In all the circumstances, self-defence was disproved.

(8) The case of H v Crown Prosecution Service (above) related to a special school and was relied upon to illustrate the principle that neither as a matter of legal analysis or legal policy could it be said that consent to an assault was to be implied in the case of a teacher at a special school. The principles applicable in relation to contact sports did not apply.

(9) In any event, Mr Kesrouani had made clear in evidence that he did not consent.

(10) In all those circumstances, the Justices had been fully entitled to convict 'A' of all three offences, and the answer to each of the questions posed should be "yes".

27. In response Mr Manning submitted that:

(1) Reliance on the possibility of someone making indecent images of 'A' was new, and there was no evidence that the purpose of restraint was to prevent photography.

(2) Any presumption that a local authority would not accommodate someone unlawfully under s.20 was clearly inappropriate in the light of the authorities (touched on above) in which strong concerns had been expressed as to the unlawful use of s.20 by local authorities.

(3) The Justices finding that the Home was "semi-secure" was clearly illegitimate and wrong, and showed a misunderstanding of s.20. It was not open to the Home to implement security measures of its own.

(4) Mr Mackay's standing in front of the door was a restraint of 'A''s freedom and, although a non-violent attempt to prevent her egress, entitled her to use force to get him out of the way. The Justices had fallen into error in not understanding that – albeit that the findings of fact made clear that 'A' wanted to get out of the Home.

(5) To any extent that 'A' had behaved abusively, that was in response to being unlawfully detained and subjected to a battery herself. Given 'A''s background, vulnerability and mental health difficulties the Justices should have recognised her to be a victim of false imprisonment. In any event, a figure of four hold by a father would be an assault on his child, and perhaps false imprisonment too. She was being assaulted and the force that she had used had been necessary and reasonable.

Discussion and Conclusions

28. This case turns entirely on its own facts. There is no application to send the Case Stated back for any amendment or clarification and, in my view, it is not necessary to do so. The questions as posed are appropriate to deal with the real issues in the case.
29. Having decided not to apply for an adjournment, the prosecution had to deal with the s.20 issue. In my view, there being no evidence to the contrary, the evidence relied upon by the Justices was, just, sufficient to enable them to reach the conclusion that 'A' was lawfully accommodated under s.20 of the Children Act 1989.
30. It is clear from the Justices' findings of fact that the only action taken by Mr Mackay or Mr Christensen prior to 'A' assaulting either of them was for Mr Mackay to stand in front of the door to prevent her leaving. Whether or not 'A' was lawfully accommodated under s.20, that was clearly only a modest infringement of her liberty. The Justices found that 'A' had then initiated the aggression, that she was not being attacked and that she was not acting in self-defence. The assaults were intentional (paragraph 7j)). There was clearly no question of mistake of fact by 'A'. The Justices found that she assaulted first Mr Mackay (biting him twice and scratching him), and then Mr Christensen (punching him with her arms). The Justices found (paragraph 7f)) that it was after that that Mr Mackay and Mr Christensen held 'A' in an attempt to prevent her kicking, punching and lashing out (paragraph 7g)), and to prevent injury to herself and them (the latter being open to them whether or not s.20 and/or Regulation 20 applied).
31. In those circumstances, and whilst making every proper allowance for 'A''s background and vulnerability, I am firmly of the view that the Justices were fully entitled to find that 'A' did not act in necessary and reasonable self-defence, and thus to find her guilty of the assaults on Mr Mackay and Mr Christensen.
32. The Justices were also, in my view, clearly right to reject the argument that there was implied consent by Mr Kesrouani. I reject Mr Manning's argument that H v Crown Prosecution Service was not analogous and should be disregarded. I likewise reject his argument that the situation was akin to a sporting encounter. The Justices were entitled to find 'A' guilty of the assault on Mr Kesrouani.
33. For those reasons I answer each of the questions posed in the affirmative, and dismiss the appeal.