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||Neutral Citation Number:  EWCA Civ 1343
||Case No: C1/2006/0155
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT
MR JUSTICE BENNETT
||Royal Courts of Justice
Strand, London, WC2A 2LL
||17th October 2006
B e f o r e :
LORD JUSTICE PILL
LADY JUSTICE ARDEN DBE
|| MRS YVONNE SCHOLES
||- and -
||SECRETARY OF STATE FOR THE
(Transcript of the Handed Down Judgment of
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MR T OWEN QC & MR H SOUTHEY (instructed by Messrs Bhatt Murphy) for the Appellant
MR N GARNHAM QC & MS J RICHARDS (instructed by The Treasury Solicitor) for the Respondent
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Lord Justice Pill :
- This is an appeal from a decision of Mr Justice Bennett sitting in the Administrative Court on 16 January 2006. The judge refused an application for judicial review made by Mrs Yvonne Scholes ("the appellant"). The appellant had sought to quash a decsion of the Secretary of State for the Home Department ("the Secretary of State") not to convene a public inquiry into the death of the appellant's son Joseph Scholes.
- On 15 March 2002, Joseph Scholes, then just sixteen years old, pleaded guilty, at Manchester Crown Court, to three offences of robbery and was sentenced to serve a detention and training order for two years. He was allocated by the Youth Justice Board ("YJB") to Stoke Heath Young Offender Institution. On 24 March 2002, Joseph hanged himself in his cell in the healthcare unit at the Institution.
- At the inquest held into Joseph's death, which lasted for ten days in April 2004, the jury returned a verdict of accidental death. The Inquisition stated: "Accidental death in part contributed because the risk was not properly recognised and appropriate precautions were not taken to prevent it". On 5 May 2004, following submissions by counsel who had appeared for the appellant at the Inquest, the Coroner wrote to the Secretary of State recommending a public inquiry. The Coroner, exercising his powers under rule 43 of the Coroners Rules 1984, expressed the view that there should be an urgent and comprehensive review of:
"The pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children's Homes (LASCH)."
The Coroner stated:
"In all the circumstances, and so that it can include Sentencing Policy which is an essential ingredient but outside the scope of the Inquest, I consider that the Review should take the form of a Public Inquiry where all interested parties can make their views known".
By letter of 16 September 2004 the Secretary of State refused the request.
- The appellant's case before this court, as before the judge, is that the Secretary of State, in deciding not to convene a full public inquiry, has failed to comply with the United Kingdom's duty, under Article 2 of the European Convention on Human Rights, to investigate the circumstances of the death of Joseph. Upon receipt of the Coroner's letter, the only rational decision was to hold such an inquiry, it is submitted.
- The opening words of Article 2(1) provide that "everyone's right to life shall be protected by law". On behalf of the appellant, it is submitted that two matters which must be investigated to comply with Article 2 have not been investigated:
"a) the sentence imposed on Joseph Scholes;
b) the extent to which a lack of resources resulted in Joseph Scholes being allocated to a Young Offender Institution (YOI)"
In a series of cases in the European Court of Human Rights, and in domestic courts, it has been held that the obligation under Article 2 includes an obligation, following a death in custody, to conduct an effective investigation into alleged breaches of the right to life.
- The robberies were street robberies committed with two other young men in Sale in the late evening of 6 December 2001. Joseph had moved into a local authority children's home on 30 November 2001, that is a week before the offences, after a family crisis. Counsel appearing for him at the hearing before His Honour Judge Lever at Manchester Crown Court drew the judge's attention to references in the Pre- Sentence Report to Joseph's "history of self harm and
threatened suicide" and to a reference in the report to the belief of a psychiatrist [Dr Fitzpatrick] that the "self harming behaviour may escalate". Attention was also drawn to a letter from a social worker which accompanied the Pre-Sentence Report and also referred to attempted self-harm and the social worker's concern "for his safety and welfare given his history of low mood of self-harm when in distress".
- When sentencing Joseph, the judge referred to those passages in the documents and stated that they must be "most expressly drawn to the attention of the authorities, please". That remark was made in the course of counsel's submissions; it was substantially repeated in the sentencing remarks. Counsel advised, in writing, an appeal against sentence on the ground that the sentence was manifestly excessive but an application for leave was not in the circumstances pursued.
- The Inquest was conducted by Mr J P Ellery, HM Coroner for the Mid and North Division of the County of Shropshire, sitting with a jury. It is accepted on behalf of the appellant that the facts were investigated with exemplary thoroughness and that what happened to Joseph has been thoroughly investigated. Mr Owen QC, for the appellant, accepts the judge's opinion that the Inquest was a model of what could be done within the Inquest system.
- What were not investigated at the Inquest were, submits Mr Owen, the fundamental questions of sentencing policy, available facilities and resources. The Coroner ruled that the Inquest could not go behind the sentence and could not go into matters of resources "save perhaps for observing that, if it is the case, that lack of resources may have been a factor, whether critical or contributory". No complaint is made about those rulings of the Coroner. The submission is that the function of the Inquest being limited, a public inquiry into what Mr Owen describes as the sentencing regime is required.
- The sentence imposed by the judge was a lawful sentence. He decided that a custodial sentence was required (a decision open to challenge in the Court of Appeal Criminal Division) and, that being so, a period of detention and training was the appropriate sentence (Section 100 of the Powers of Criminal Courts (Sentencing) Act 2000 ("the 2000 Act"). Section 102(1) of the 2000 Act provides:
"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 may be authorised by him for that purpose".
The duty to provide the "secure accommodation" is undoubtedly upon the Secretary of State and not upon the judge. Indeed, the statute provides that it is for the Secretary of State to determine in what secure accommodation the offender shall serve the period of detention and training. That accords with well established principles as to the division of powers and responsibilities between the judiciary and the executive.
- It thus became the responsibility of the Secretary of State, a responsibility entrusted by him to the YJB, to decide where Joseph should be detained. It was open to the YJB to place Joseph either in a Young Offender Institution ("YOI"), a Secure Training Centre ("STC") or in a Local Authority Secure Children's Home ("LASCH"). Joseph should have been placed in a LASCH, it is submitted, having regard to his vulnerability. In his letter of 2 May 2004, the Coroner stated:
"Without going behind the sentence Joseph received at this Inquest it does seem to me essential that there is an urgent and comprehensive review of the pre-sentence exercise, the allocation process and the availability and provision of Local Authority Secure Children's Homes. The statistics indicate that more young offenders are being sent to custody without a proportionate increase in Local Authority Secure Units/Secure Children's Homes to accommodate the inevitable increased proportion of those receiving such sentences who are considered to be vulnerable."
"It seemed clear to me that the allocation of disturbed and vulnerable young children (typically 15 and 16 year old boys) should be determined on a needs basis and not a resources basis. This is all the more important if Courts are sentencing such vulnerable and disturbed young offenders in the belief, mistaken or not, that recommendations, such as that contained in the pre-sentence report and endorsed by the Sentencing Judge can be implemented."
In a further letter, the Coroner repeated his concerns "as to the availability and allocation of secure accommodation for vulnerable juvenile offenders such as Joseph".
- The appellant's solicitors also wrote to the Parliamentary Under Secretary requesting a full public inquiry. The reply, dated 16 September 2004, stated:
"Having given proper consideration to the question, the Minister did not consider that a full public inquiry would be the best or most appropriate response. The main reason given by the Coroner for recommending a public inquiry was to enable the sentencing issue to be considered. Clearly, a public inquiry would not be as well placed as the Sentencing Guidelines Council to review sentencing issues. The other matters can most suitably be addressed by the independent review by Mr David Lambert which the Minister has commissioned, and by the Youth Justice Board."
- The reply to the Coroner, also dated 16 September 2004, stated:
"In fact the new Sentencing Guidelines Council, established by the Government, and which is chaired by the Lord Chief Justice, is currently considering new guidelines on sentencing for robbery. I think it is right for the Council to be the body which addresses the issues arising from Joseph Scholes's sentence, and I am formally asking the Council to do this. I understand why you wanted to recommend a public inquiry to tackle this, but I think that the Council does provide the most appropriate forum.
The operational issues you drew attention to are important and need to be looked into by someone with the necessary expertise to identify the realistic scope for improvement. I am asking David Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to do this. David Lambert conducted the recent inquiry into the death of Toni-Ann Byfield. I enclose a copy of his terms of reference.
The configuration and development of the juvenile secure estate is a longer-term issue, which the Youth Justice Board is addressing as part of its work on a new vision for the future of juvenile custody on which it will be putting proposals to Ministers later this year. We have asked the Board to take full account of the concerns expressed in the verdict of the inquest jury and relayed in your letter."
- A letter, dated 27 August 2004, was also sent to the Lord Chief Justice as Chairman of the Sentencing Guidelines Council ("SGC") enclosing the Coroner's letter and stating the Minster's conclusions:
"He has concluded that the Coroner's concerns about sentencing policy might best be addressed by asking the Sentencing Guidelines Council to review the Joseph Scholes case in the context of its current consideration of guidelines for robbery offences. I am therefore writing to forward that request".
- The SGC is a statutory body set up under the Criminal Justice Act 2003, Section 107, with both judicial and non-judicial members. Its functions include framing sentencing guidelines (Section 170). In framing guidelines, it must have regard, amongst other things, to "the cost of different sentences" and to "the need to promote confidence in the criminal justice system" (Section 170(5). The Council is assisted by the Sentencing Advisory Panel (Section 169) whose functions include proposing the framing or revision of guidelines by the Council (Section 171).
- The case of Joseph Scholes has also been the subject of parliamentary scrutiny. It was mentioned in the Third Report of Session 2004-05, on Deaths in Custody, of the Joint Committee on Human Rights. Having noted that the court in the case "had no power to determine whether Joseph was held in prison service or local authority accommodation" the Committee made this recommendation:
"We recommend that the Government should take the opportunity afforded by the Youth Justice Bill to empower the Youth Justice Board to direct the form of custody of a sentenced child who has been assessed as particularly vulnerable. Such powers must be accompanied by adequate funding for suitable forms of accommodation for vulnerable children, both on remand and following sentence".
- The Government response, (HL Paper 69), published on 10 March 2005, stated: "The Government agrees that provision of a wide range of accommodation is necessary to meet the varying circumstances of offenders below the age of eighteen, particularly those unsuited to the present environment". Reference was made to the available options and it was stated: "Age and gender determine which kind of custody, except that a fifteen or sixteen year old boy will go to a young offender institution unless he is vulnerable and a place is available in local authority secure remand." It was also stated, at page 16: "Sentencing is a matter for the courts but the Government agrees that sentencers should be adequately informed about the vulnerability of individual offenders".
- The response also dealt with the following recommendation made by the Committee at paragraph 75 of the Third Report:
"There has never been a public inquiry into the death of a child in custody. We recommend that the Home Secretary order a public inquiry into the death of Joseph Scholes in order that lessons can be fully learnt from the circumstances that led up to his tragic death. We also recommend that local authority secure accommodation should be used wherever possible for children, with use of prison service custody reduced to an absolute minimum."
- The Government's response was:
"The Government agrees the Committee's view that the deaths in custody of juveniles and young people are especially distressing and welcomes the Committee's support for the measures it is taking to minimise the risk of self-injury and suicide amongst this vulnerable age group. The tragic death of Joseph Scholes at Stoke Heath Young Offender Institution on 24 March 2002 was fully investigated by the Prison Service (assisted by an advisory panel made up of independent experts from the Prisons and Probation Ombudsman's office, Social Services and the Youth Justice Board). Additionally Trafford Youth Offending Team undertook a local management review, which fed into a Serious Incident Review conducted by the Youth Justice Board. Trafford Area Child Protection Committee carried out a "Part 8" review under Part 8 of the Department of Health's document "Working Together to Safeguard Children" and Joseph's death was subject to a thorough 10 day inquest before a jury.
The government carefully considered the subsequent recommendation made by Mr J P Ellery, the Coroner of Shropshire (Mid and North Division) that there should be a public inquiry but concluded that this was unlikely to bring to light any additional factors not already uncovered in the earlier investigations. The Government, however, agreed that the Coroner's concerns should be addressed. These fell into three broad categories. These were: the appropriateness of the sentence itself; operational matters such as the effectiveness of pre-sentence and placement procedures; and whether the juvenile secure estate as currently configured is able to provide fully for vulnerable young people."
The Government decided, after seeking comments from Mrs Yvonne Scholes, Joseph's mother, that three different types of response were needed, and took the following action
We referred the circumstances in which Joseph received a custodial sentence on three counts of attempted robbery to the Sentencing Guidelines Council, requesting it to take his case into account in its current work to draw up guidelines on sentencing for robbery,
We appointed David Lambert, a former Assistant Chief Inspector of the Social Services Inspectorate, to examine the operational issues raised by this case, including through the Coroner's inquest, and
We asked the Youth Justice Board, which was preparing a draft strategy for the future juvenile custodial estate, to take full account of the points made by the Coroner on the adequacy of custodial provision for vulnerable young offenders.
The Government firmly believes that these measures are the most appropriate response to the Coroner's concerns, and are more precisely focused on each type of issue than a public inquiry would have been.
The Government agrees the Committee's view that local authority secure accommodation should be used wherever possible for children, with the use of Prison Service custody reduced to an absolute minimum. The Government uses only local authority secure accommodation and comparable places in secure training centres for children under the age of 15, and for the more vulnerable 15 and 16 year olds. The Government believes that any sort of custody for young people should be a last resort, and that approach is enshrined in legislation (the Powers of Criminal Courts (Sentencing) Act 2000). For those young people whom the courts do send to custody, the Youth Justice Board seeks to make the best possible use of available accommodation, taking full account of age and other factors that contribute to vulnerability. Local authority secure children's homes and secure training centres provide for the youngest trainees. It would not be appropriate for these young people to mix with older juveniles, who are generally placed in a juvenile young offender institution. The most vulnerable 15 and 16 year olds are also held outside young offender institutions. The Youth Justice Board considers that more provision is needed for vulnerable 15 and 16 year old boys, and its recent consultation paper Strategy for the Secure Estate for Juveniles proposes a new form of 'intermediate' accommodation, with smaller-scale units and more intensive staff support for trainees, which would address this need ...
The juvenile secure estate has evolved considerably since it was set up in 2000 and continues to develop. The Government believes the proposals in Strategy for the Secure Estate for Juveniles the consultation period ends on 28 February set a clear direction for the future of the estate."
- Concern was also expressed in a report of the United Nations Committee on the Rights of the Child dated 9 October 2002. It was stated at paragraph 59:
"The Committee is also extremely concerned at the conditions experienced in detention and that children do not receive adequate protection or help in young offender institutions (for 15 to 17 year olds), noting the very poor staff-child ratio, high levels of violence, bullying, self-harm and suicide, the inadequate rehabilitation opportunities, the solitary confinement in inappropriate conditions for a long time as a disciplinary measure or for protection, and the fact that girls and some boys in prisons are still not separated from adults".
- Following his visit to the United Kingdom in November 2004, the Council of Europe Commissioner for Human Rights reported, at paragraph 91:
"As far as children are concerned, I was informed that the conditions of their detention have improved somewhat in recent years, with greater investment in Local Authority Secured Children's Homes ('LASH'S') and Secured Training Centres ('STC's') and in the services provided for children detained in Young Offender Institutions ("YOI")."
- Commenting on a visit to a prison for young offenders and juveniles (Hidebank Wood in Northern Ireland), the Commissioner stated: "If Hidebank Wood is at all representative, it is clear that YOIs are poorly equipped to deal with psychologically fragile children
Whether the solution lies in increasing the number of places in LASHs, in improving psychiatric care in YOIs or in keeping such unstable children out of prison altogether is not for me to say. It is obvious, however, that this structural shortcoming must be urgently addressed".
- In its response of 8 June 2005, the Government referred to a comprehensive review of establishments where young people were held and to a new staff training package with an enhanced child protection module, and further funding for 25 local authority staff, to undertake duties in Young Offender Institutions. The response continued:
"The report comments on the risk of self-harm to vulnerable and disturbed young people in custody. The Prison Service and the Youth Justice Board attach the greatest importance to preventing this. A comprehensive review of each establishment was conducted between November and December 2003, under a Steering Group of the Youth Justice Board, Prison Service and Social Services and Prison Inspectorates. It covered measures to address self-harm and suicide, bullying and peer abuse, harm from adults and historic child abuse; monitoring and reporting, management and warning arrangements; and arrangements with local Area Child Protection Committees and local authority services. A new staff training package with an enhanced child protection module has been developed and independent advocacy services now operate in all establishments. The Board has made available funding for 25 local authority staff (in addition to existing Prison Service child protection co-ordinator posts) to undertake duties under the Children Act 1989 in Young Offender Institutions. These are just some of the measures that have been taken to protect vulnerable young people.
The juvenile secure estate has made significant progress over the last five years. No 15 or 16 year old girls are now held in Prison Service accommodation and we are setting up five new special units to accommodate 17 year old girls. But we recognise that there is scope to do more. The Youth Justice Board has published a consultation document outlining its draft Strategy for the Secure Estate for Juveniles. Its proposals include, for example, enhanced provision for vulnerable older boys. The Board is currently considering the comments it has received and will take account of them in finalising its strategy".
- On 1 April 2004, a debate in the House of Lords followed Lord Dholakia's question whether the Government would "establish an independent inquiry into the circumstances surrounding the death of Joseph Scholes at Stoke Heath prison". Lord Dholakia was supported by other members of the House in his request for an inquiry. Replying for the Government, Lord Bassam of Brighton stated:
"I have to make it clear that there are no plans at this stage, however sympathetic we may be, to hold a public inquiry. The inquest will resume later this month and over 50 witnesses have been called to give evidence. This in itself will be a thorough inquiry providing the opportunity for independent public scrutiny, and it is hoped that many of Mrs Scholes's questions will be answered. The Minister has, however, already given his assurance to Mrs Scholes that there will be a comprehensive summary of the lessons learned by the various agencies involved and that the results will be shared with both her and her MP, Chris Ruane."
- Lord Bassam described in some detail the measures being taken by the Government to improve facilities for the care of juveniles detained in custody. Referring to reception in custody, he stated:
"Other improvements have been made to reception processes that focus on identifying vulnerability and there have been measures to improve the healthcare centres. Better child protection arrangements are now in place, including child protection training as a priority, something which I know the noble Lord, Lord Dholakia, is particularly keen to see carried forward."
- Mr Owen also relies on statements made by Baroness Hale when delivering a lecture to Liberty in November 2004 as highlighting the issues arising in this case. Baroness Hale drew attention to the "dramatic" differences between YOIs and LASCHs. The former have a staff ratio of 4 to 60 whereas at the latter it is 4 to 8. Places at LASCH cost over three times as much as those at a YOI. Baroness Hale also stated that the custody criteria for children do not include "the requirement that a suitable place be available which is prepared to take on the child in question. Nor has the court any control over which placement is chosen by the Youth Justice Board for any particular child". Baroness Hale queries whether that "can be justifiable".
- Among the witnesses who gave evidence at the Inquest were Mr P J Minchin, who was employed by the YJB, Mr R M Perfect, Chief Executive of the YJB, Ms C P N James, Governor at Stoke Heath, and Dr M J Bourne, Consultant Child and Adolescent Psychiatrist. I refer briefly to aspects of the evidence, as summarised in the Coroner's summing-up to the jury. The Coroner referred to evidence of a failure to pass on relevant information, including the judge's sentencing remarks. There was also evidence that, even if information had been passed on, it would not have affected Joseph's placement. Mr Perfect said that a 16 year old boy would have been most unlikely to get a placement in a Local Authority Secure Home. Beds had to be kept available for younger children and for welfare placements. The Governor stated that many of the boys who enter Stoke Heath are vulnerable. The overwhelming majority of young people who go there leave there without any significant harm and in many cases significantly better than when they entered.
- Dr Bourne, an independent expert instructed by the Coroner, expressed the opinion that Joseph "simply should never have been allocated to Stoke Heath." Dr Bourne sees the Crown Court's failure to obtain a psychiatric report as a "significant omission" but I see no force in that suggestion when Dr Fitzpatrick's report was quoted in the pre-sentence report, when it was reinforced by the social worker's report, and when the judge took the action he did in relation to that information. Dr Bourne did also express the opinion that the information available after the court hearing should have been passed on. An application to transfer Joseph from the YOI had been made before his death but had not made progress.
- In addition to returning a verdict, the jury at the Inquest responded to a detailed questionnaire which had been prepared by the Coroner in consultation with the parties' legal representatives. This was a procedure contemplated by Lord Bingham of Cornhill in R(Middleton) v West Somerset Coroner & Anr  2AC 182 (cited at paragraph 52 below).
- Clear and succinct answers were given to some of the questions;
Q. "Was all necessary information passed on to the relevant authorities."
A. "No. For instance, Dr Fitzpatrick's report should have been sent to all parties."
Q. "Do you think it was appropriate to allocate Joseph to a YOI?"
Q. "Do you consider on the evidence that you have heard that vulnerable children such as Joseph ie. in the 15 to 16 year old male category are likely, unlikely or most unlikely to be allocated to secure local authority units?"
A. "Most unlikely".
Q. "Do you consider any failure of the system to be a gross failure as outlined by the Coroner which clearly and directly led to Joseph's death?"
A. "No. However could we reiterate the unsuitability of the clothing." [Joseph had initially been put in strip clothing].
- Several of the answers refer to the lack of the communication and liaison which should have occurred and to the failure to pass on information. The opinion is expressed that "Vulnerability levels should be highlighted perhaps by using different colours for different levels". The jury accepted the evidence that better information would not in practice have made any difference to Joseph's allocation.
- Some of the answers are less clear. The jury stated: "From the evidence given it was policy not to [send] 16 year olds straight into local authority secure units. Perhaps more money could be put into building more secure units." In answer to the question whether they considered that "Resources or a lack of them may be a relevant issue as to the number of available local authority secure unit places", the jury replied: "According to reports there were no budgetary constraints. There was not a lack of staff". There are just not enough LASU's" [My emphasis]
- The appellant also brought a civil claim against the Home Office and the Youth Justice Board alleging negligence, breach of statutory duty and breach of the Human Rights Act. The claim was settled, without a hearing or an admission of liability, for a substantial sum.
- On behalf of the appellant, Mr Owen QC submits that the single issue raised by this appeal is whether the State's investigative duty under Article 2 of the ECHR has been fully discharged. He submits that, in the circumstances, Article 2 requires` a public inquiry into issues which were not addressed at the Inquest. The requirements of Article 2 have not been met by the other enquiries and measures taken. Mr Owen's submissions have been wide-ranging but it is necessary to consider them in the context of the application made in these proceedings which is for an order quashing the decision of the Secretary of State not to convene a public inquiry into the death of Joseph Scholes.
- It is first submitted that, knowing what it did, the court ought to have informed itself of the circumstances in which Joseph would be detained. The court should have ensured that he was detained in circumstances compatible with Articles 2 and 3. If a court knows that the sentenced defendant will be detained in unsatisfactory conditions, the court's decision may put the United Kingdom in breach of Article 2 of the Convention, and also Article 3 (which prohibits torture and inhuman or degrading treatment or punishment) if the threshold of severity is crossed. In the absence of an assurance from the Secretary of State that appropriate accommodation was available, the sentence should not have been imposed.
- Mr Owen's second submission is that the Home Secretary, by his officials, failed to ensure that the detention was in conditions which, having regard to Joseph's vulnerability, were appropriate. The case had revealed a serious and worrying problem as to the availability of suitable accommodation for young offenders, it is submitted.
- Mr. Owen submits that a public inquiry is necessary to investigate the availability of appropriate accommodation for young offenders. Investigation of the resources available to the Secretary of State is beyond the scope of an Inquest and the Secretary of State's duty to investigate the death can be discharged only by the convening of a full public inquiry. The evidence in the case demonstrates a lack of appropriate accommodation and, since the question of the resources available for such accommodation, and of the Secretary of State's policy towards such accommodation, is beyond the scope of an Inquest, a public inquiry is required. Reference has also been made, as reinforcing the need, to subsequent deaths of children in custody.
- Counsel does not invite the court to specify the terms of reference of the proposed inquiry, or who would conduct it. While he maintains a flexible approach, he contemplates that it would be conducted by a judge, with or without assessors.
- For the respondent, Mr Garnham QC submits that policy issues are beyond the scope of Article 2. He further submits that the duties under Article 2 are upon the respondent as the appropriate organ of the state. The judge was entitled to assume that the Secretary of State would ensure that Joseph would serve his sentence in accommodation appropriate to his needs. Save in exceptional circumstances, any breach in circumstances such as the present would be by the executive, in the United Kingdom the Home Secretary, as detaining authority. The duty was in this case discharged by the thorough investigation of the facts conducted at the Inquest where the appropriate officers of the Secretary of State were extensively cross-examined and independent expert evidence called. Alternatively, the combination of the Inquest and the other enquiries met the requirements of Article 2.
- The judge expressed his conclusions as to the adequacy of the Inquest in relation to the Article 2 obligation. He stated:
"87. In my judgment the Inquest conducted by the Coroner into Joseph's case was, as Mr Garnham submitted, a model of what was required to discharge the State's investigative obligation under Article 2. If such needs any confirmation, it is confirmed by the absence of any challenge to it by way of judicial review. The Coroner was right to exclude from the scope of the Inquest the sentencing policy or regime in relation to juveniles and in particular in relation to cases such as Joseph's. Indeed Mr Owen did not suggest the contrary. Furthermore, it is abundantly plain that the whole focus of the Coroner and the various parties was to make certain it did comply with the investigative obligation under Article 2. The contrast with Amin where there was no inquest and with Middleton where there was only a truncated inquest, could not be starker. Further, I am satisfied that the only issue relating to the juvenile estate which was outside the scope of the Inquest was the financial resources available.
88. I accept Mr Garnham's submission that the domestic authorities of Amin, Middleton and the European authorities of Jordan and Taylor support the proposition that inquests are the normal method, absent some quite exceptional set of circumstances, of the State discharging its investigative obligation under Article 2 where there has been a death of a prisoner, whether adult or juvenile, in custody. Furthermore, where an inquest does not, correctly in my judgment, bring within its scope sentencing policy and/or broad issues of government funding or resources, both the domestic and European authorities are to the effect that it is not incumbent upon the State under Article 2 to set up a public inquiry to cover these issues. And that is so whether or not a systemic problem is said to exist in any particular case. Whether the setting up of a public inquiry in the instant case may be said to be desirable is a matter of debate; but it is, in my judgment, not unlawful for the Secretary of State to decline to do so. In my judgment the law as expounded by the House of Lords and the European Court does not support Mr Owen's central submission; indeed it is to the contrary."
- At paragraph 89, the judge considered public concern about the imposition of custodial sentences on young offenders. He stated that these are "matters for public and political debate which fall outside the scope of the Article 2". The judge added, at paragraph 91:
An inquest is the normal method by which the State discharges its Article 2 investigative obligation save where a criminal prosecution intervenes or a public inquiry is ordered in a major accident. In the instant case there was a full and thorough Inquest conducted with Middleton well in mind. The State, in my judgment, has discharged its Articles 2 obligation in the instant case. Sentencing policy and funding for the juvenile estate were outwith its investigative obligations under Article 2."
- The judge went on to consider what the position would be if his first conclusion was wrong. He referred to the work of the SGC and to the fact that Joseph's case was referred to them by the Home Secretary in August 2004. In reply to a letter from the appellant's solicitors, the SGC wrote on 3 August 2005:
"The Council's work programme also provides for consideration to be given to the sentencing of youths as a general issue and it is anticipated that the issues arising from the sentencing of vulnerable young people will be considered also under that topic. The Sentencing Advisory Panel will be starting consideration of that issue later this year and we expect that a consultation paper will be published in the spring of 2006.
Anyone may respond to any of the Panel's consultation papers which are published on our website as well as being sent directly to a range of organisations and individuals. I have noted your client's interest and we will endeavour to ensure that you are sent a copy of the consultation paper."
- The judge referred to the draft Guidelines on sentencing in cases of robbery published in November 2005 (definitive Guidelines have since been published). The judge also referred to a YJB inquiry described in his statement by Mr Richard Hughes, an administrator in the Home Office. The YJB consulted widely. Mr Lambert's examination of the operational issues arising was mentioned in the Secretary of State's letter cited at paragraph 19 of this judgment. In November 2005 the YJB published its "Strategy for the Secure Estate for Children and Young People Plans for 2005/6 to 2007/8".
- Counsel's submissions to the judge were summarised by the judge. The methods of inquiry were:
not sufficient either individually or together or in conjunction with the Inquest to satisfy the State's Article 2 investigative obligation. They are separate investigations. The investigations of the SGC and YJB cannot consider the relationship between sentencing policy and the provision of LASCHs. If "dangerous practices" are to be rectified the relationship between the provision of LASCH's and sentencing policy need to be considered by one single inquiry.
Furthermore, he submitted, there was insufficient public scrutiny of the form of the enquiries of the SGC and YJB and/or the results. Joseph's family would not be able to play an adequate role and they would be treated no differently from other members of the public."
- The judge expressed his conclusion at paragraph 112:
"In my judgment it must be a highly significant factor that Parliament has set up two specialist bodies, the Sentencing Advisory Panel and the SGC, to look at sentencing policy and its guidelines from time to time. Both are completely independent. Although their internal deliberations are, as I understand it, private, nevertheless the results are published and attract close examination, and either approval or fierce criticism. The Draft Guidelines are published specifically to stimulate public debate and to attract constructive comments and criticism. The next of kin are consulted and can express their views. I am sure that, if the claimant chose to take part, which she has not done so far, the Panel and/or the SGC would listen with the very greatest care to her views. She will thus be able to participate in the debate on sentencing policy for young (and vulnerable) offenders. When the final Guidelines are published I have no doubt that in respect of the sentencing of young offenders such as Joseph they will be the subject of intense public scrutiny and debate."
The judge concluded, at paragraph 114, that "in the instant case there has been an Article 2 compliant inquiry either through the Inquest or through a combination of the Inquest and of the inquiries of the SGC and YJB".
- In considering the authorities, I bear in mind the issue in the case, as stated by Mr Owen: Has the United Kingdom's investigative duty under Article 2 of the Convention been discharged without there having been a full public inquiry? The inquiry is sought to consider the fundamental questions of sentencing policy and resources and available facilities or, as it was put, the sentencing regime. Many of the authorities are concerned with the adequacy of the factual investigations. It is accepted in this case that the facts, and what have been described as the operational issues, have been thoroughly investigated. I accept that there was no prospect of an application for judicial review of the Inquisition, and the quashing of the verdict, succeeding.
- In R(Amin) v Secretary of State for the Home Department  1 AC 653, where there was no Inquest, the issue was as to the extent of investigation required when a man serving a sentence in a Young Offender Institution was murdered by his cell mate. Describing the State's duty to investigate a death in custody, Lord Bingham of Cornhill stated, at paragraph 31:
"The purposes of such an investigation are clear: to ensure so far 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 wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others."
- Lord Slynn of Hadley stated, at paragraph 43:
"Such investigation must however be by an independent person, and be "effective" to satisfy the relevant duty (Edwards 35 EHRR 487 at paras 69-73). There must be a sufficient element of public scrutiny and the next of kin or the family must be involved to an appropriate extent (Jordan v United Kingdom (2001) 37 EHRR 52)."
- Lord Steyn stated, at paragraph 50:
"But the investigation of cases of negligence resulting in the death of prisoners may often be more complex and may require more elaborate investigation. Systemic failures also affect more prisoners. The European Court of Human Rights has interpreted article 2 of the European Convention on Human Rights as imposing minimum standards which must be met in all cases."
- In Middleton, the issue was whether a Coroner's jury should be permitted to make a finding of systemic, but not individual, neglect following the suicide in custody of a man known to be a suicide risk. Lord Bingham posed the question and gave the answer:
6. Question (1) What, if anything, does the Convention require (by way of verdict, judgment, findings or recommendations) of a properly conducted official investigation into a death involving, or possibly involving, a violation of article 2?
7. The European Court has never expressly ruled what the final product of an official investigation, to satisfy the procedural obligation imposed by article 2 of the Convention, should be. This is because the Court applies principles and does not lay down rules, because the Court pays close attention to the facts of the case before it and because it recognises that different member states seek to discharge their Convention obligations through differing institutions and procedures
8. The Court has recognised (in McCann v United Kingdom 21 EHRR 97, para 146) that its approach to the interpretation of article 2 "must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective." Thus if an official investigation is to meet the state's procedural obligation under article 2 the prescribed procedure must work in practice and must fulfil the purpose for which the investigation is established."
- At paragraph 20, Lord Bingham stated:
"The European Court has repeatedly recognised that there are many different ways in which a state may discharge its procedural obligation to investigate under article 2. In England and Wales an inquest is the means by which the state ordinarily discharges that obligation, save where a criminal prosecution intervenes or a public enquiry is ordered into a major accident, usually involving multiple fatalities. To meet the procedural requirement of article 2 an inquest ought ordinarily to culminate in an expression, however brief, of the jury's conclusion on the disputed factual issues at the heart of the case."
At paragraph 31, Lord Bingham stated that one of the purposes of the investigation as to ensure that "dangerous practices and procedures are rectified."
- In later paragraphs, Lord Bingham considered the possible role of the jury and how to elicit their conclusion on the central issue or issues. He stated:
This may be done by inviting a form of verdict expanded beyond those suggested in form 22 of Schedule 4 to the Rules. It may be done, and has (even if very rarely) been done, by inviting a narrative form of verdict in which the jury's factual conclusions are briefly summarised. It may be done by inviting the jury's answer to factual questions put by the coroner."
- At paragraph 38, Lord Bingham referred to the power of the Coroner to make recommendations:
"In the ordinary way, the procedural obligation under article 2 will be most effectively discharged if the coroner announces publicly not only his intention to report any matter but also the substance of the report, neutrally expressed, which he intends to make."
- In R (Sacker) v West Yorkshire Coroner  1 WLR 796, where a female defendant on remand hanged herself in her prison cell, Lord Hope stated, at paragraph 11:
"But every time one [a suicide] occurs in a prison the effectiveness of the system is called into question. So all the facts surrounding every suicide must be thoroughly, impartially and carefully investigated. The purpose of the investigation is to open up the circumstances of the death to public scrutiny. This ensures that those who were at fault will be made accountable for their actions. But it also has a vital part to play in the correction of mistakes and the search for improvements. There must be a rigorous examination in public of the operation at every level of the systems and procedures which are designed to prevent self-harm and to save lives."
- In Oneryildiz v Turkey  41 ECHR 20, a methane explosion at a municipal refuse tip resulted in a landslide which engulfed the applicant's house, killing his close relatives. The ECtHR stated, at paragraph 94:
"To sum up, the judicial system required by Art.2 must make provision for an independent and impartial official investigation procedure that satisfies certain minimum standards as to effectiveness and is capable of ensuring that criminal penalties are applied where lives are lost as a result of dangerous activity if and to the extent that this is justified by the findings of the investigation. In such cases, the competent authorities must act with exemplary diligence and promptness and must of their own motion initiate investigations capable of first, ascertaining the circumstances in which the incident took place and any shortcomings in the operation of the regulatory system and, secondly, identifying the state officials or authorities involved in whatever capacity in the chain of events in issue."
- At paragraph 96, the court added:
"On the other hand, the national courts should not under any circumstances be prepared to allow life-endangering offences to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts. The Court's task therefore consists in reviewing whether and to what extent the courts, in reaching their conclusion, may be deemed to have submitted the case to the careful scrutiny required by Art.2 of the Convention, so that the deterrent effect of the judicial system in place and the significance of the role it is required to play in preventing violations of the right to life are not undermined."
- The Court's conclusion, stated at paragraph 117, was:
"Accordingly, it cannot be said that the manner in which the Turkish criminal justice system operated in response to the tragedy secured the full accountability of state officials or authorities for their role in it and the effective implementation of provisions of domestic law guaranteeing respect for the right to life, in particular the deterrent function of the criminal law."
It was held that there had been a violation of Article 2. What was in issue, however, was the operation of procedures to enforce the criminal law.
- In R (Takoushis) v Her Majesty's Coroner for Inner North London & Ors  EWCA Civ 1440, this court considered Article 2 in the context of alleged medical negligence in a NHS hospital. The court concluded, at paragraph 105:
"Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of Article 2 as identified by the European Court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability."
The court stated, at paragraph 108, that there is an important difference, in this context, between cases concerning those who are detained by the State and those who are not.
- I refer to two other cases cited by the Judge and relied on by Mr Garnham. In Jordan v United Kingdom  37 EHRR 2, the ECtHR held that there had been a violation of Article 2 in respect of failings in the investigative procedures following the shooting of an unarmed man. No reasoned decision was available to re-assure a concerned public that the rule of law had been respected (paragraph 124). However, the court added, at paragraph 128:
"The Court agrees that a detailed investigation into policy issues or alleged conspiracies may not be justifiable or necessary. Whether an inquest fails to address necessary factual issues will depend on the particular circumstances of the case. It has not been shown in the present application that the scope of the inquest as conducted so far has prevented any particular matters relevant to the death being examined."
- In Taylor, the European Commission of Human Rights on 30 August 1994 held an application was manifestly ill-founded and inadmissible. (Application No. 23412/94). A trainee nurse had been convicted of the murder of four children and of attempted murder and causing grievous bodily harm to other children. The Commission described the criminal proceedings and an internal inquiry by a senior Queen's Counsel. The Commission stated:
" The Commission acknowledges that neither the criminal proceedings nor the Inquiry addressed the wider issues relating to the organisation and funding of the National Health Service as a whole or the pressures which might have led to a ward being run subject to the shortcomings apparent on Ward Four. The procedural element contained in Article 2 (Art.2) of the Convention however imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. The Commission finds no indication that the facts of this case have not been sufficiently investigated and disclosed, or that there has been any failure to provide a mechanism whereby those with criminal or civil responsibility may be held answerable. The wider questions raised by the case are within the public domain and any doubts which may consequently arise as to policies adopted in the field of public health are, in the Commission's opinion, matters for public and political debate which fall outside the scope of Article 2 (Art.2) and the other provisions of the Convention."
- In Matthew v State of Trinidad and Tobago  1 AC 433, the Privy Counsel accepted, at paragraph 12 of the judgment of the majority delivered by Lord Hoffmann that the mandatory death penalty was a cruel and unusual punishment. That was also the view of the minority, the difference of opinion in the Council being as to whether the sentence imposed was preserved from constitutional challenge. Mr Owen relies on the case as establishing that a sentence imposed by a court may itself involve a breach of Article 2 or Article 3 of the Convention.
- In R(D) v Secretary of State for the Home Department  EWCA Civ 143, this court considered the adequacy of an investigation by a senior investigating officer in the prison service following the near suicide of a young man at a prison. The court considered the inquiry to be compatible with Article 2 of the Convention. It acknowledged that there must be involvement of the applicant's representatives "to the extent necessary to safeguard his or her legitimate interest". The inquiry must be in public.
- On the basis that Joseph's right to life was insufficiently protected at Stoke Heath, investigation is required as to how he came to be there. Joseph was at Stoke Heath as a result of two decisions. The first was the decision of the judge to sentence Joseph to a detention and training order under Sections 100 and 102 of the 2000 Act. The second was the decision of the YJB to place Joseph at Stoke Heath, a YOI. The evidence at the Inquest was that he should not have been there, having regard to his vulnerability. He should have been at a LASCH. The evidence was also that he would have been placed in a YOI even had the judge's remarks, based on the medical evidence, been considered by the YJB. Given the available resources, it was almost inevitable, or overwhelmingly likely, as Mr Garnham QC for the respondent put it, that Joseph would go to a YOI.
- I do not consider that Judge Lever was at fault or in breach of his duties in taking the action he did. His sentence was of course liable to challenge in the Court of Appeal Criminal Division. The judge imposed a sentence which was lawful and specifically requested that information as to Joseph's vulnerability be passed to the appropriate authorities. I do not consider that, in this case, he was obliged to conduct an enquiry, subsequently conducted at the Inquest over a period of days, as to where and in what circumstances Joseph would and should be detained. The duty to place offenders is upon the Secretary of State, the duty in this case being expressly stated in Section 102 of the 2000 Act. It is not normally for the sentencing judge to decide where, within the parameters of the sentence imposed, that sentence is to be served.
- I do not exclude the possibility that there could be a case in which a sentence imposed by a court would itself place the United Kingdom in breach of its obligations under Article 2 or Article 3 of the Convention. The present sentence was, however, far removed from that possibility.
- The evaluation of the circumstances in which Joseph died was thorough and no complaint about it is made in an Article 2 context. Where failures are identified, however, investigation of the facts does not complete performance of the State's obligations, unless consideration is given to effecting improvements. In Amin, Lord Bingham spoke of rectifying "dangerous practices and procedures" (paragraph 31) and in Sacker Lord Hope spoke of the "correction of mistakes and the search for improvements" (paragraph 11). The purpose for which the investigation is established is not fulfilled, to adopt the expression of Lord Bingham in Middleton (paragraph 8), unless factual investigation is followed by consideration of possible remedial measures. In Oneryildiz, the concern was with a failure to secure the full accountability of State officials or authorities for what had happened (paragraph 117). Such action was required following the investigation of the facts and its absence involved a breach of Article 2.
- Where the failures are of the kind identified in the present case, I do not consider that the Commission's statement in Taylor that "wider questions" fall outside the scope of Article 2 is, as the law has now been interpreted, applicable to render unnecessary enquiries beyond the factual investigation provided by the Inquest. The statement in Jordan that detailed investigation of policy issues may not be necessary was in the context of a defective investigation of the facts. Such a defect does not necessarily give rise to policy issues. Lord Bingham's proposal in Middleton (paragraph 36), as interpreted by the Coroner in the present case, was to put a detailed questionnaire to the jury on a range of issues.
- The evidence at the Inquest revealed a worrying situation with regard to the detention of young offenders. On the evidence, vulnerable young offenders, such as Joseph, have been detained in conditions unsuitable for their safety and their lives. That having been revealed in a properly conducted Inquest, there is, in my judgment, a duty upon the Secretary of State to investigate further what remedial action can be taken. Thorough investigation of facts at an Inquest would have little value in preventing a repetition and in maintaining public confidence, unless followed up.
- Having regard to the issue raised on the judicial review, I am doubtful as to the appropriateness of them being dealt with, insofar as they were, by a Coroner's jury. However clearly and conscientiously the questions are drafted, the jury cannot be expected to give answers to questions of resources and policy which could provide reliable guides to an improvement in conditions. For example, while criticism of documentation and communication was appropriate, the "failure in the system", alleged on behalf of the appellant, went much further than that. For the jury to say that it was "policy" not to place young offenders in LASCHs and to state, "that there were no budgetary constraints" is difficult to reconcile with the evidence given. The negative answer to the question "any failure of the system [was] a gross failure" may be tenable but its value is questionable in the search for improvement.
- I make these points not to criticise the jury but respectfully to question the value, as a way of discharging Article 2 duties, in present circumstances, of questions such as these put to the jury. As a fact finding tribunal, the jury is well established and valued for its part in the administration of justice in England and Wales. As such, it operated effectively in this case. Questions on factual issues will sometimes be helpful. However, the value of a jury's views as a tool for assessing and improving procedures is in my view limited in circumstances where further investigation of policies and administrative procedures, as distinct from facts, is required. Reliance on a jury's contribution by way of answering a questionnaire, however well intentioned, may be inappropriate. Some of the jury's answers in the present case illustrate the limitations of the procedure. I should wish to repeat the reservations I expressed in Sacker v West Yorkshire Coroner  2 All ER 278, at paragraphs 24 to 27.
- There has, however, been a substantial public debate and it is continuing. I have set out in some detail the representations made to the Government and the Government's response. The respondent has demonstrated that he is well aware of the concerns and problems arising. The procedures to be followed, and the resources to be allocated, have been the subject of active consideration. That is shown not only in the inquiries conducted but in Government responses, for example, to the Committee on the Rights of the Child, and in the House of Lords. Problems remain but there is every indication that the issues involved, both in sentencing policy and in the allocation of resources, are at least being confronted. Article 2 does not go further and impose a duty to find a solution to problems such as these. As to sentencing policy, this is monitored by the SGC and the Sentencing Advisory Panel and, of course, Parliament is deeply involved.
- The investigations, assessments and debates in progress are such that, in my judgment, the appellant has not established that the Secretary of State is in breach of Article 2 by failing to convene a public inquiry into this specific case, tragic though it is and serious the issues raised. I am far from persuaded that setting up a public inquiry is the only way in which the obligation under Article 2 can be discharged in this case. It is not a case in which the respondent, either expressly or by inaction, has failed to confront the issues which have emerged or failed to give serious consideration to possible improvements. The combination of the Inquest and the measures taken, including the input into the deliberations of the SGC, have achieved compliance with the Article 2 obligation.
- Questions of sentencing policy and of the allocation of resources are essentially for collegiate consideration and decisions by the Government, following procedures which are well established, including those by which guidance is given to judges. I cannot hold that the only appropriate action is for a judge, however eminent, to be given the task of resolving such issues, at or following a public inquiry.
- There remains the question of the participation of the family of the deceased into the investigation. In Amin, it was stated that the family must be involved "to an appropriate extent".
- The bereaved family and their advisors were fully involved at the Inquest and in subsequent representations to the Secretary of State. They have been invited to make representations to the SGC. It is recognised that they can make an input into questions of policy and resources but, because broad issues of public concern are involved, many other factors have to be taken into account and involvement in those issues cannot be expected to be to the same degree. Participation in issues of sentencing policy and the allocation of resources are in a different category from the investigation of facts in the particular case.
- If I am right that the Article 2 duty may extend beyond a factual investigation into a search for improvements, issues of policy may arise. In addressing them, the appropriate extent of the family's involvement required, however serious the impact of the events upon them, is likely to be less than with the investigation of the facts. I do not accept that concern for the family's involvement imposes an obligation on the Secretary of State to hold a public inquiry.
- I would dismiss this appeal.
Lady Justice Arden :
- I agree with Pill LJ that this application must be dismissed for the reasons that he gives.
- The authorities cited by Pill LJ demonstrate that the boundaries of the obligations on a state to conduct an investigation under article 2 of the European Convention on Human Rights are not in all respects clear cut. In seeking to identify those boundaries in any case not covered by authority or earlier jurisprudence of the Strasbourg court, the court's own inquiry must include an examination of the objectives sought to be achieved by the investigation (or further investigation) of the relationship in areas between those objectives and the values which underlie the Convention or established by Convention jurisprudence. The reasons for having a fresh investigation may appear cogent to the applicant, but the court is not necessarily required to form any view in the case as to merits of those objectives.
- Much has been done since the tragic death of Joseph Scholes to ascertain what went wrong and what needs to be considered for the future. There has been a coroner's inquest and, in addition, other steps have been taken in Parliament and by the Sentencing Guidelines Council and others. One of the reasons for Mrs Scholes' application to quash the refusal of a new inquiry is, as Mr Owen put it in his oral argument, so that there can be an investigation as to why resources are not available for the provision of additional places in local authority secure children's homes. Mr Owen submits that the inquiry should also investigate how the state considers it can continue with the increasing tendency to incarcerate young people and ensure that there are sufficient safe places.
- I would like to add the following supplementary observations. One of the key values in the Convention is that of democracy. Of course, democracies take different forms. However, they tend to share some basic features. Democracy is not in conflict with the enforcement by the judiciary of individual rights conferred by the Convention, such as article 2 on which Mrs Scholes relies. As Lord Bingham said in A v Secretary of State for the Home Department  2 AC 68 at para 42:
..[T]he function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it "The courts are charged by Parliament with delineating the boundaries of a rights-based democracy" ("Judicial Deference: servility, civility or institutional capacity?"  PL 592, 597). See also Clayton, "Judicial deference and 'democratic dialogue': the legitimacy of judicial intervention under the Human Rights Act 1998"  PL 33."
- There is, however, a distinction to be drawn between legal and political questions. In A v Secretary of State for the Home Department at paragraph 29, Lord Bingham also held:
"The more purely political (in a broad or narrow sense) the question is, the more appropriate it would be for political resolution and the less likely it is to be for an appropriate matter for judicial decision. The smaller therefore would be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions."
- Likewise, in this case, as it seems to me, Mrs Scholes is in part seeking, by way of individual rights under article 2 of the Convention, to intervene in the political process which determines the allocation of resources to institutions such as secure children's homes. In my judgment, in so far as she seeks to do so or to establish a right for members of the public to be consulted on these matters, she seeks to carry Convention rights further than authority or Convention jurisprudence would require (see, for example, the Taylor case, cited by Pill LJ in para. 60 of his judgment).
- For these additional reasons, I agree with Pill LJ that this appeal must be dismissed.
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