Youth restraint challenge rejected by High Court

16 January 2012 by Rosalind English

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd  and Serco plc [2012] EWHC 8 (Admin) – read judgment

Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.

The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.

Background

The general purpose of an STC is to accommodate young people from the age of 12 – 17 who either have been sentenced to custody or have been remanded in custody by a court. The restraint techniques, including “the Double Embrace”, “the Figure of Four Armlock”, as well as distraction techniques involving application of pressure to certain parts of the anatomy to distract the individual momentarily from whatever serious misbehaviour is taking place, of were broadly authorised under the powers given to the authorities by Section 9 of the Criminal Justice and Public Order Act 1994. This statutory power exists in other words for the authorisation of the use of “reasonable force”, amongst other things, “to ensure good order and discipline on [the] part” of detainees. But the Secure Training Centre Rules are more specific. Unless the rules provided for the use of reasonable force to “ensure good order and discipline”, the use of force for that purpose would be unlawful. On the face of it, the rules in force do not permit the use of physical restraint to “ensure good order and discipline”. That is not one of the permitted categories provided for by the rule. There was evidence that there were occasions, for example, when young people had been restrained for failing to comply with instructions rather than because they threatened security or posed a risk to safety as laid down in STC Rules.

The period complained of amounted to nearly a decade (1998 – 2008) and it was not until an inquest held in 2007 into the death of a fourteen year old detainee that the Youth Justice Board officials agreed that the use of some restraining techniques should be banned.

The essence therefore of the claimant’s case was that the defendant was under a positive obligation to inform those who might have been subjected to unlawful restraint procedures to enable them to consider whether they wish to seek some form of redress in relation to what, if it occurred, would have constituted an assault or trespass to the person or a breach of their Article 3 and Article 8 rights under the Human Rights Convention.

The judgment

The judge observed that the Youth Justice Board, instead of monitoring properly,  had apparently “actively promoted” the restraint techniques which were subsequently banned in 2008. But he rejected arguments made by  CRAE that the Government was under a legal obligation to identify potential victims and notify them of their right to seek compensation. These arguments were neither supported by the common law nor by Convention precedent. Nor was the failure to inform irrational on traditional judicial review grounds; indeed if the defendant’s refusal to disclose the identities of the former detainees were taken in to account, Foskett J regarded the Data Protection Act issues, combined with there being no legal requirement to take the action requested, sufficient to constitute a rational basis for not carrying out the exercise.

Comment

It is remarkable that this case has been spun as a victory for the CRAE. It was not. The application failed on its merits, the order was refused, and, as the judge pointed out, the claimant would not have even been given standing to make out its case if its arguments had been based on the Convention alone. There are two noteworthy features of this case: the novelty of the order sought by the claimant, and the question of the claimant’s standing to bring the case at all.

The remedy sought by the claimants

The CRAE’s contention was that there was a common law and Convention obligation on the part of the defendant to inform those potentially affected by the unlawful use of force during the relevant period that they may have been so affected. They maintained that the lack of precedent could not of itself defeat the claim whether the court considered the matter by reference to the Convention or to the common law as informed by the State’s International Law obligations. The two limbs of their argument, common law and Convention rights, were articulated in terms of the right of access to court. As they put it, the individual victims of the unlawful restraint needed to be identified and advised; obtaining advice was an integral part of the right to access to a court because without the opportunity to take advice an individual cannot be said to have unimpeded access to a court. An individual should be told that his rights have been infringed so that he is put in a position to decide whether to challenge, or seek redress in relation to, such an infringement.

The thrust of the claimant’s Convention arguments is conveniently summarised by the judge as follows:

[Since] State agents breached the Article 3 and Article 8 rights of those detainees made the subject of unlawful force, the State has also violated those rights by failing to have in place an adequate administrative framework to prevent the abuses taking place (e.g., by an adequate monitoring or inspection system), it has misrepresented the lawfulness of what occurred and has compounded those failures by, it is suggested, failing properly to investigate the allegations of breaches of Article 3 and failing to offer the victims appropriate compensation. [The claimant] submits that unless the defendant takes the steps sought in this application (or proposes any other sensible alternative) the State will remain in flagrant breach of its obligations under the Convention and, at the very least, the defendant should enable the victims to take steps to compel the State to do so by providing them with the necessary information. Again, the context, of course, is the detention by the State of children and young persons.

Despite the “seductive quality” of the claimant’s arguments, the lack of a precedent, either in domestic law or within the Strasbourg jurisprudence, that confirmed the existence of the specific obligation contended for by the claimant, was ultimately fatal to their claim. Foskett J could not in the end accept that the law demands that the defendant should undertake the kind of dissemination of information exercise that the claim for relief seeks.

I have reached this conclusion both on the narrower approach of considering what the common law requires so far as access to justice is concerned and on a broader appraisal of the factual situation that underlies the claim – although to some extent the latter informs the former.

Put simply, the monitoring systems in place, though insufficient in that they allowed the unlawful restraints to pass unchecked,  were not of themselves “sufficiently inadequate” to give rise to a positive obligation on the part of the defendant now to endeavour to contact all those affected, or potentially affected, by what took place.

I would, for my part, take the view that a court should be very reluctant to fashion, by analogical or incremental development of the common law or indeed by way of novel creation, a remedy designed solely for the circumstances of the present case without a clear appreciation of how the reasoning that leads to the grant of that remedy might be used as a springboard for suggesting expanded obligations of disclosure in other situations.. I am troubled by the thought that granting a remedy of the nature sought in this case would represent the thin end of an ever-expanding wedge without a clear appreciation of where the expansion would lead.[118-119]

The Convention limb of the claimant’s case fared no better than the common law argument. Foskett J observed that no feature of the Strasbourg jurisprudence has gone so far as to impose the kind of obligation contended for in this case and that it is not open to the domestic courts to move ahead of the European Court of Human Rights in this regard (invoking the principle in R (Ullah) v Special Adjudicator [2004] 2 AC 323), a principle which has found further expression in Regina (Al-Skeini and others) v Secretary of State for Defence  [2008] 1 AC 153  (see in particular Lord Brown at para 106).

the expression “bringing rights home” simply means that Convention rights should be enforced in the domestic courts rather than having to go to Strasbourg to enforce them: see R(SB) v Denbigh High School Governors [2007] 1 AC 1000 at paragraph 29, where Lord Bingham of Cornhill said “the purpose of the Human Rights Act 1998 was not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country and not only by recourse to Strasbourg.” The expression does not support the enlargement of Convention rights in a way not previously recognised in Strasbourg jurisprudence.[190]

Charities and the question of “standing”

On what basis did CRAE have the right to represent the unidentified victims of this unlawful practice? The question is only relevant to the Convention limb of the argument; if the claimant had been unwise enough to rest its submissions on the Convention alone the answer to this question would have been fatal to its case. As it happened, the broader standing rules of judicial review applied and the defendant’s challenge on this point did not go anywhere. It was however given careful consideration by the judge, even though he found there was something somewhat “artificial” about it, given  the serious nature of the issues raised concerning young and vulnerable individuals -“it would seem strange that a reputable charity such as the Claimant should not be entitled to come to court and raise the kind of issues raised.”

The provision dealing with standing to bring claims under the Human Rights Act 1998, Section 7, was drafted with the specific intention of confining the class of persons who could bring a claim under the Act to someone who would be a victim within Article 34. Where Parliament has decided to create an exception to this statutory requirement under section 7, it has legislated expressly, for example endowing the Commission for Equality and Human Rights with standing by virtue of section 30 of the Equality Act 2006. Claimants under the HRA 1998 must in other words satisfy a stricter test of standing than applicants for judicial review. This reflects Strasbourg’s strict approach to Article 34 of the Convention; for example there are a number of decisions that a trade union or other organisation cannot itself claim to be a victim on the ground that it represents the interests of members (see Ahmed v United Kingdom (1995) 20 EHRR CD). Nor is domestic law any more promising in this regard. In a Northern Irish case involving arguments over the legality or otherwise of the defence of “reasonable chastisement” to an assault charge where children were involved, the question of standing for the NI Commissioner for Children and Young People arose. The judge concluded that

legislation which suggests that the applicant should become a major litigant in the human rights field. While recourse to the courts for vindication and redress is a fundamental necessity to protect human rights, there is nothing in the 2003 legislation, made five years after the HRA 1998, which suggests that the Commissioner becomes a victim within the Strasbourg jurisdiction simply because rights of children may be infringed.

If the Claimant’s case had rested solely on asserting the Convention rights of former detainees of the four STCs, Foskett J would have had to conclude likewise.

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