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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Children's Rights Alliance for England v Secretary of State for Justice (includeds Ruling) [2012] EWHC 8 (Admin) (11 January 2012) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2012/8.html Cite as: [2012] EWHC 8 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE CHILDREN'S RIGHTS ALLIANCE FOR ENGLAND |
Claimant |
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- and - |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
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- and - |
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G4S CARE AND JUSTICE SERVICES (UK) LIMITED and SERCO PLC |
Interested Parties |
____________________
James Strachan (instructed by The Treasury Solicitor) for the Defendant
Jason Beer QC (instructed by DWF Solicitors) for the Interested Parties
Hearing dates: 22-24 November 2011
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Crown Copyright ©
Mr Justice Foskett:
Introduction
"STCs accommodate persons who either have been sentenced to custody or have been remanded in custody by a court. Their population contains males aged between 12 and 14; females aged between 12 and 16; and males aged between 15 and 17 and females aged 17 who are classified as vulnerable."
"It is unequivocally accepted by the Defendant that children in custody are amongst some of the most vulnerable and socially disadvantaged and that they have specific needs which may not be common to the wider population of young people."
The Claimant in these proceedings
The relief sought and the competing arguments in a nutshell
(a) Children who were subjected to restraint for 'good order and discipline' in STCs between the opening of the STCs and the introduction of the new PCC Manual on 19 August 2010;
(b) Children who were subjected to nose, rib or thumb 'distraction techniques' or other deliberately painful compliance techniques in STCs between the opening of the STCs and the introduction of the new PCC Manual on 19 August 2010."
"The manual was first produced in 1997 in preparation for the opening of the first STC in 1998. The manual itself was republished in 2003 and again in 2005, but the techniques in any particular version of manual are also subject to changes from time to time . Thus the 2005 version was subject to a number of modifications, before the manual was replaced in its entirety in July 2010 ."
(a) restraint (or physical restraint)
This comprises a variety of techniques employed forcefully to restrain a detainee. The 2005 PCC Manual (which was replaced in July 2010) describes a system of holds designed specifically for use on young people which are not intended to involve pain in order to regain control. The holds were designed to enable physical control to be applied by either one, two or three members of staff, depending on the level of intervention required, though it can extend to further members of staff if necessary. The level of intervention moves up through various phases depending on the seriousness of the position that has to be addressed, though the ultimate objective is systematically to downgrade and ease any hold or holds applied as soon as it is practical and safe for all involved. Simply by way of example, the holds included the Double Embrace, the Figure of Four Armlock, the Wrap Around Arm Hold, the Double Wrap Around Arm Hold, the Double Embrace Lift and various transfers between these holds.
(b) distraction techniques
The 2005 PCC Manual describes three distraction techniques nose, thumb and rib distraction. The distraction techniques involve, it is said, the measured application of pressure in the areas specified in order to cause a short, controlled burst of pain. The essential purpose is to distract the individual momentarily from whatever serious behaviour is taking place to enable the incident to be brought to a swift and safe conclusion by, for example, then enabling a restraint hold to be applied which otherwise would not have been possible.
The background in more detail
General
The statutory and regulatory framework
"Powers and duties of custody officers employed at contracted out secure training centres.E+W
(1) A custody officer performing custodial duties at a contracted out secure training centre shall have the following powers, namely -
(a) to search in accordance with secure training centre rules any person who is detained in the secure training centre; and(b) to search any other person who is in or who is seeking to enter the secure training centre, and any article in the possession of such a person.
.
(3) A custody officer performing custodial duties at a contracted out secure training centre shall have the following duties as respects those detained in the secure training centre, namely -
(a) to prevent their escape from lawful custody;(b) to prevent, or detect and report on, the commission or attempted commission by them of other unlawful acts;(c) to ensure good order and discipline on their part; and(d) to attend to their wellbeing.
(4) The powers conferred by subsection (1) above, and the powers arising by virtue of subsection (3) above, shall include power to use reasonable force where necessary."
Rule 37. Use of Force
(1) An officer in dealing with a trainee shall not use force unnecessarily and, when the application of force to a trainee is necessary, no more force than necessary shall be used.
(2) No officer shall act deliberately in a manner calculated to provoke a trainee.
Rule 38. Physical Restraint
(1) No trainee shall be physically restrained save where necessary for the purpose of preventing him from
(a) escaping from custody;
(b) injuring himself or others;
(c) damaging property; or
(d) inciting another trainee to do anything specified in paragraph (b) or (c) above,
and then only when no alternative method of preventing the event specified in any of the paragraphs (a) to (d) above is available.
(2) No trainee shall be physically restrained under this rule except in methods approved by the Secretary of State and by an Officer who has undergone a course of training which is so approved.
(3) Particulars of every occasion on which a trainee is physically restrained under this rule shall be recorded within 12 hours of its occurrence.
"The contract for Cookham Wood stipulates that physical restraint may only be used as a last resort when no alternative is available and only to prevent a child from escaping, from harming him/herself or others, from damaging property, or to prevent a child from inciting another to do any of these things. The use of physical force for any other purpose, including to secure compliance with staff instructions is prohibited. These requirements will be reflected in the STC Rules."
"We have not been able to establish conclusively why the phrase "good order and discipline" was not included in the original STC Rules, but we think it is entirely reasonable to infer from its absence that it was deliberately omitted, and that the reason for that omission was that it is inappropriate in the context of detention of children. Children and young people in detention are in a uniquely vulnerable position. Whilst everyone in detention must be treated with dignity and respect, children in detention have particular needs, distinct from the adult prison population, given their age and stage of development. The use of violence on vulnerable children and young people in detention can rarely be acceptable and risks breaching international human rights standards."
"Each Trainee in custody at [the STC] will only be subject to physical restraint as a last resort when no alternative is available and only to prevent him/her from escaping or from harming him/herself or others or from damaging property, or to prevent him/her from inciting another Trainee to harm him/herself or others or to damage property. Physical force will not be used at [the STC] on any Trainee for any other purpose nor will it be used on any Trainee simply to secure compliance with staff instructions. When all other approaches have been exhausted and there is no realistic alternative to the use of physical force, the only methods of physical restraint which may be used on a Trainee in custody at the [STC] will be those specifically approved by the Authority and only as used by Staff certified as Custody Officers by the Authority."
"Physical force will be used only:
- To prevent a trainee from escaping
- To prevent a trainee from harming him/herself or others
- To prevent a trainee damaging property
- To prevent a trainee from inciting another trainee to harm him/herself or others or damage property.
Physical force will not be used for any other reason or simply to obtain compliance with staff instructions, it will be a measure of last resort."
"In incidents where the Trainee has physically grabbed hold of either another Trainee or a member of staff then the following techniques can be applied to gain control before application of [approved] PCC holds.
If two Trainees are involved then ideally two members of staff will work simultaneously to separate the Trainees."
"There may be occasions when trying to separate a Trainee that the Nose Distraction is not possible. This may be the case if the Trainees are grappling or if they have a member of staff or Trainee trapped against a wall and their head is positioned in such a way that staff cannot safely apply the Nose Distraction, in such circumstances the Rib Distraction can be used."
"If the Figure of Four Arm Holds cannot release the Trainee's arms then the staff can use a Thumb Distraction to effect release.
As with all distraction techniques the Thumb Distraction is an extreme measure and can only be used if justified. If it is used then the previously described procedures must be followed."
What was happening
"All of the STCs routinely use PCC to gain compliance. It was probably one of the main reasons for its use. Current rules do not permit the use of PCC for compliance but I believe that it is sometimes necessary. STCs run to strict timetables. They could benefit from the introduction of greater flexibility but at some stage they need to enforce movement. We can and should develop improved behaviour management but when somebody refuses to move from the sports field or simply will not go to their room they cannot always be permitted to stay where they are. We should not dress up the use of PCC in these cases as necessary for safety or security."
"I was surprised at the high level of PCC recorded in every STC. Hassockfield's use of force figures are typical. In the year ending March 2004 they recorded 912 PCC incidents. 773 of these were planned. The Double Embrace (mostly with head support) was used on 574 occasions. This is a very high total compared to the rate of [control and restraint] in [young offender's institutions]. The high number of planned interventions is also worrying. At two centres I asked whether the officer supervising had any guidance about alternatives to consider prior to use of force. They did not. One director said that he would welcome guidance. I think it is an essential tool and would be easy to develop."
"It also means that the force must be necessary for one of the purposes in STC Rule 38: in order to prevent the trainee from escaping, from injuring himself or others, or from damaging property."
"During the course of this inspection we became aware that staff remained confused about the basis in which physical intervention is permitted with young people. This was despite the contract between Premier Training Services and the YJB and the PCC (Physical Intervention) Manual stipulating the grounds explicitly and all staff having the requirements reinforced during their mandatory training. We were told of occasions 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 YJB Regional Manager and staff told us that although Incident Report Forms giving the reasons for and means of restraint were monitored by managers and submitted to the YJB, there had been no challenges about the grounds used. It is important therefore that effective means of scrutiny are also developed to assure all essential information is gathered and considered. It will be important to define the roles and responsibilities of the STC staff and managers and the YJB in this process." (Emphasis added.)
"The second sentence which states 'Subsequent to the inspection the YJB clarified its position having taken advice from the Home Office Legal Advisers' is misleading since it implied that the YJB was unsure of the position prior to the inspection. This is not the case. Nor are we aware that staff were confused about the basis in which physical intervention is permitted with young people.
The YJB has always been aware that Section 9 of the Criminal Justice and Public Order Act 1994 permits the use of reasonable force to ensure good order and discipline. The fact that staff at Hassockfield used the approved PCC restraint system to enforce good order and discipline indicates that they were equally aware of their powers. The "confusion" arose over the police decision to arrest two members of Hassockfield staff for using a restraint. It is the police who were confused as to what was or was not permitted under the legislation. It is possible that the CSCI Inspectors were equally confused by this development. The YJB sought legal advice only because of the police decision to arrest the staff and refer to the CPS. This legal advice confirmed the YJB's understanding of what was permitted by law and this was passed on to the Hassockfield operator by way of reassurance. In the event the CPS did not lay charges.
It is detrimental to the reputation of both the YJB and Hassockfield STC to imply that either party was confused as to whether what was being practised was permitted under the law. We will advise Home Office Ministers accordingly.
The same paragraph states further on that "the YJB have also clarified the "exceptional circumstances" in which forms of physical intervention other than approved PCC holds can be used." We are not aware of having issued any such clarification and do not know to what this refers. The same considerations apply as above. If these references are to be retained they should not lead the reader to conclude that the YJB has been in any doubt as to what is permitted under legislation.
This whole paragraph might well be omitted since it is difficult to understand how this is relevant to the report, arising as it does from an apparent misunderstanding of the law by the police."
"During interviews with staff and managers it became clear that they were confused about the basis on which physical intervention is permitted with young people. Following the inspection the YJB provided clarification of this".
"Commenting on a draft of this report, the YJB advised the report does not provide a complete picture with regard to PCC. The Criminal Justice and Public Order Act 1994 (s 9) provides for custody officers to use reasonable force to "ensure good order and discipline". This power remains available to Custody Officers even though it is not repeated in the STC rules."
"Whilst the YJB contract is clear that staff may not use force simply in order to secure compliance with staff instructions, it may be the case that a refusal to follow instructions impacts on the order and discipline of the Centre. In these circumstances it will ultimately be for the staff concerned using force to make the case that it is necessary in the circumstances to do so."
"George Reilly also provided a summary of the lawful use of force. He pointed out that force could only be used where it is necessary, and that no more force than is necessary may be used. No trainee shall be physically restrained save where necessary for the purposes of preventing him from:-
(a) escaping from custody
(b) injury himself or others
(c) damaging property or
(d) inciting another trainee to cause injury or damage property."
"Another issue is that PCC skills are deployed against trainees for non-compliance, as well as for violent behaviour. For instance, PCC is used to overcome resistance when trainees refuse to attend education, move location, or go to bed. Data from the reporting process at one STC show that over a quarter of PCC was undertaken to overcome non-compliance. Further data showed that, in one month, a third of PCC was undertaken to overcome non-compliance, while around a fifth of all PCC skill was undertaken to overcome non-compliance.
Based on staff and trainee interviews, trainees are aware of, and able to manipulate, the weaknesses of the current PCC program. By the same token, it would appear that the STC rules are often manipulated in order to bring an incident within the authority to use force. One such stretching of the rules is where a staff member initiates low-level physical contact with the trainee, following non-compliance. When the trainee responds in a manner that can be perceived as putting staff or others at risk of assault or violence, the need to use force is established. Reports may then include the fact that the trainee's behaviour was such that there was a risk to staff or other trainees. This approach and type of manipulation puts the organisation and individual staff members at risk of assault as well as possibly exposing them to prosecution."
"The total number of Physical Control in Care interventions used in Secure Training Centres during the period January 2004 to August 2005 was 7,020 . Statistics for each of the four Secure Training Centres are set out below:
Medway 3282
Rainsbrook 1081
Hassockfield 1719
Oakhill (from August 2004) 938*
*Oakhill has not been at full capacity during this period."
"The Inquiry received evidence that restraint was used by staff simply to secure compliance. Both staff and children reported that disobedience or refusal to comply with an instruction could result in physical restraint. This was particularly an allegation made about regimes in the secure training centres."
"The use of force will be justified, and therefore lawful, only:
- If it is reasonable in the circumstances
- If it is necessary
- If no more force than is necessary is used
- If it is proportionate to the seriousness of the circumstances
Reasonable in the circumstances
The interpretation of reasonable is a key issue concerning a use of force. The issue of reasonableness is a matter of fact to be decided in each individual case. Each set of circumstances is unique and are to be judged on their own merits. Factors to be taken into account when deciding what is 'reasonable' will be things such as the size, age and sex of both the trainee and the member of staff concerned in the use of force and whether any weapons are present.
Necessary
The action must have been necessary.
The first distinction to make is between force used in 'self defence' (can more easily be demonstrated to be 'necessary') and force used because someone has refused to obey a lawful order. It is not enough that a trainee be given any 'lawful order' to do something and has refused to do so. (Emphasis added.)
It is important to take into account the type of harm that the member of staff is trying to prevent this will help to determine whether force is necessary in the particular circumstances they are faced with. 'Harm' may cover all of the following risks:
- Risk to life
- Risk to limb
- Risk to property
- Risk to the good order of the establishment
It is clearly easier to justify force as 'necessary' if there is a risk to life or limb.
Deciding whether force is 'necessary' in order to maintain the good order of the establishment may be complicated the member of staff must take into account the consequences of the trainee not complying with his/her lawful instruction.
." (Emphasis added.)
"The legal position is that the STC Rules describe the only circumstances in which the powers provided for in section 9 of the Criminal Justice and Public Order Act 1994 can be used by officers in carrying out their duties.
This means that restraint can only be lawfully used in circumstances described in rule 38 of the STC rules. This position reflects the terms and conditions of the contract."
"I want to reassure you that the YJB has been working closely with the Ministry of Justice and previously the Home Office to amend the STC rules in line with previous consultation with yourselves. I am advised that changes are imminent. In the meantime, it is your responsibility to ensure that the use of force within your establishment is being carried out lawfully."
Conclusions
"25. The YJB have a concurrent power to appoint a monitor of an STC by virtue of article 4(2)(k)(i) of the [2000 Order]. The functions of a monitor can be found in section 8(3) of, and paragraph 3 of Schedule 2 to, the 1994 Act and in the STC Rules. Among these is the duty to keep under review and to report to the YJB (by virtue of the [2000 Order]) on the running of the STC.
26. The YJB deploys monitors into all secure establishments that accommodate children and young people. Monitors use a range of tools and techniques to form a view as to whether the establishment is delivering a safe and effective service to children and young people. They then work with YJB Contract Management colleagues to resolve any issues identified and to improve performance with the objective of delivering the safest and most effective service possible.
27. The role of monitors is, in part, to ensure that the accommodation and services commissioned by the YJB are being appropriately delivered. However, the monitors also assist in enabling the YJB to discharging certain of its statutory responsibilities. These include the monitoring, making known and promotion of good practice in the operation of the youth justice system and the provision of youth justice services. Monitors consider areas of practice, for example behaviour management, in each establishment they visit. They identify areas where they can either encourage that establishment to share their practice with others or to direct providers towards areas of practice elsewhere that can help them become more effective.
28. The YJB's deployment of monitors is a core method of assessing the performance of these providers, but it in no way diminishes the responsibility of providers themselves to manage their own services."
"In its response to the Williamson and Smallridge Review, the Government accepted the recommendation that techniques incorporating pain needed to be available, for the protection of staff and other young people, as a last resort in exceptional, defined circumstances. However, the Government was clear that this must go hand in hand with enhanced training for staff in de-escalation techniques and behaviour management in order to embed a culture where restraint is only ever used when all other avenues have been exhausted. In addition, the government considered that the systems for reporting and monitoring the use of restraint must be enhanced and additional safeguards put in place for the protection of young people who have been restrained."
"Another practical problem for the potential complainant (as it may be for staff in moments of crisis that require immediate action) is being able to distinguish between what the regulations permit and what they do not. Many have uncomplainingly submitted to ill-usage in the past because 'that is what goes on in these places' and they believe that what members of staff do is always authorised. The difficulties are even greater in institutions in which a culture of illicit violence such as bullying exists, when ill-treatment by staff appears insignificant in comparison. Self-reporting is not a reliable source of evidence about the incidence of violence in institutions. One returns inevitably to the need for clear and simple guidelines, proper recording and reporting, aggregated information, and responsible managerial and external scrutiny."
"7. Children in custody rely for their daily wellbeing on prison staff. As young people have developmental affiliative needs, they are more likely to be in a situation where they have a parental transference, seeing prison staff as parental figures on whom [they are] reliant. In view of the immense power discrepancies between the jailed child and the prison staff, it is likely that children will develop a compliant and fearful attitude towards these adults, often not daring to challenge them because they believe them to be all powerful. In this context children can experience prison staff as not following complaints procedures because they are 'powerful enough' not to. Children may also perceive complaints procedures being followed through but in the end they are not ruled in favour of the children.
8. In this way, the reputation for the uselessness of the complaints procedure spreads amongst the kids. Whilst at one end of the spectrum the complaints procedure is considered futile, at the other end children fear revenge, believing that if they make complaints their 'lives will be made hell' in custody."
The submissions of the parties
The common law
"Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff's choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory."
"Now we turn to a principle of greater importance. It is a principle of our law that every citizen has a right of unimpeded access to a court. In Raymond v Honey Lord Wilberforce described it as a "basic right." Even in our unwritten constitution it must rank as a constitutional right. In Raymond v. Honey, Lord Wilberforce said that there was nothing in the Prison Act 1952 that conferred power to "interfere" with this right or to "hinder" its exercise. Lord Wilberforce said that rules which did not comply with that principle would be ultra vires. Lord Elwyn-Jones and Lord Russell of Killowen agreed with Lord Wilberforce. It is true that Lord Wilberforce held that the rules, properly construed, were not ultra vires. But that does not affect the importance of his observations. Lord Bridge of Harwich held that the rules in question in that case were ultra vires. He agreed with Lord Wilberforce on the basic principle. But he went further than Lord Wilberforce and said that a citizen's right to unimpeded access could only be taken away by express enactment. Lord Lowry agreed with both Lord Wilberforce and Lord Bridge. It seems to us that Lord Wilberforce's observations rank as the ratio decidendi of the case, and we accept that such rights can as a matter of legal principle be taken away by necessary implication.
Equally clearly established is the important principle that a prisoner's unimpeded right of access to a solicitor for the purpose of receiving advice and assistance in connection with the possible institution of civil proceedings in the courts form an inseparable part of the right of access to the courts themselves. The principle was laid down by the European Court of Human Rights in Golder v United Kingdom and it was clearly enunciated as part of our domestic jurisprudence by the Divisional Court in Reg v Secretary of State for the Home Department, Ex parte Anderson ." Goff L.J., in giving the judgment of the court, said:
"As we can see from Raymond v Honey itself, an inmate can initiate civil proceedings without making any formal complaint, simply by despatching the necessary documents to the court by post. Such a communication cannot be stopped by the governor, and it is not therefore, under the standing orders, subject to the simultaneous ventilation rule: see order 5B 33(a). It must, we consider, be inherent in the logic of the decision of the House of Lords in Raymond v Honey that an inmate's right of access to a solicitor for the purposes of obtaining advice and assistance with a view to instituting proceedings should be unimpeded, in the same way as his right to initiate proceedings by despatching the necessary documents for that purpose by post is unimpeded."
It follows that section 47(1) of the Act of 1952 does not authorise the making of any rule which creates an impediment to the free flow of communications between a solicitor and a client about contemplated legal proceedings. This, too, is a rule of fundamental importance."
"Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."
"First, while this case has arisen in a jurisdiction where the European Convention for the Protection of Human Rights and Fundamental Freedoms applies, and while the case is one in which the Convention and the common law produce the same result, it is of great importance, in my opinion, that the common law by itself is being recognised as a sufficient source of the fundamental right to confidential communication with a legal adviser for the purpose of obtaining legal advice. Thus the decision may prove to be in point in common law jurisdictions not affected by the Convention. Rights similar to those in the Convention are of course to be found in constitutional documents and other formal affirmations of rights elsewhere. The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.
To essay any list of these fundamental, perhaps ultimately universal, rights is far beyond anything required for the purpose of deciding the present case. It is enough to take the three identified by Lord Bingham: in his words, access to a court; access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As he says authoritatively from the woolsack, such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment. The point that I am emphasising is that the common law goes so deep."
"For my part I am reasonably confident that once it is accepted that oral interviews with prisoners serve a useful purpose in exposing potential miscarriages of justice the Home Secretary would not wish his present policy to be maintained. But, if I am mistaken in that supposition, my view is that investigative journalism, based on oral interviews with prisoners, fulfils an important corrective role, with wider implications than the undoing of particular miscarriages of justice. Nevertheless, I must directly address the counter arguments advance by the Home Secretary.
Latham J. was unimpressed with the reasons advanced in opposition to the applicants' limited claim in the first affidavit of Audrey Wickington. In my judgment the judge was right. The two new affidavits make a case that any oral interviews between prisoners and journalist will tend to disrupt discipline and order in prisons. In my view these affidavits do not take sufficient account of the limited nature of the applicants' claims, viz to have interviews for the purpose of obtaining a thorough investigation of their cases as a first step to possibly gaining access through the Criminal Cases Review Commission to the Court of Appeal (Criminal Division). The affidavits do not refute the case that until 1995 such interviews enabled a substantial number of miscarriages to be undone. Moreover, they do not establish that interviews confined to such limited purposes caused disruption to prison life. In any event, the affidavits do not establish a case of pressing need which might prevail over the prisoners, attempt to gain access to justice: see decision of the Court of Appeal in [Leech], the correctness of which was expressly accepted by counsel for the Home Secretary."
"The arguments for the Home Secretary ignore fundamental principles of our law. Notice of a decision is required before it can have the character of a determination with legal effect because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. This is not a technical rule. It is simply an application of the right of access to justice. That is a fundamental and constitutional principle of our legal system ."
"Until the decision in Ex p Salem it had never been suggested that an uncommunicated administrative decision can bind an individual. It is an astonishingly unjust proposition. In our system of law surprise is regarded as the enemy of justice. Fairness is the guiding principle of our public law. In R v Commission for Racial Equality, Ex p Hillingdon London Borough Council [1982] AC 779, 787, Lord Diplock explained the position:
"Where an Act of Parliament confers upon an administrative body functions which involve its making decisions which affect to their detriment the rights of other persons or curtail their liberty to do as they please, there is a presumption that Parliament intended that the administrative body should act fairly towards those persons who will be affected by their decision."
Where decisions are published or notified to those concerned accountability of public authorities is achieved. Elementary fairness therefore supports a principle that a decision takes effect only upon communication."
"I have already explained that to have access to justice, the person subject to removal (other than those who wish to be removed and have consented in writing) need in the limited time available prior to removal to have a genuine opportunity to find a legal adviser who is ready, willing and able to provide legal advice and who (if appropriate) would after providing the relevant advice be ready, willing and able in the limited time available prior to removal to challenge the removal directions. Otherwise he or she would not have access to justice and. I have already explained how this genuine opportunity was something which the Secretary of State explained in the 2007 policy document that the United Kingdom Border Agency needed to ensure."
171. The main challenge of the claimant to the 2010 exceptions was that it abrogated the constitutional right of access to justice. This right means that every individual must be in a position to challenge a decision in the court. This right was acknowledged by the Secretary of State in the 2007 policy document which stated that "we need to ensure that persons, subject to removal enforced removals have sufficient time between the notification of the [removal directions] and the date/time of removal to seek legal advice and/or to apply for [judicial review]". Further the Chief Executive of UKBA stated in a letter dated 1 March 2007 in relation to the minimum 72-hour time frame that "in setting the revised minimum time frames for notification of removal we have had to balance the need to ensure proper access to court with the public interest in establishing a robust removal process that makes sufficient use of limited detention facilities."
172. Unfortunately, the 2010 exceptions do not take account of "the need to ensure proper access to the courts" as they permit the Secretary of State to depart from the standard policy of giving a minimum of 72 hours' notice of removal including at least two working days with the last 24 hours being on a working day. The effect of the 2010 exceptions is that in practice in the limited time available between serving the removal directions and the actual removal, it is frequently almost impossible that somebody served with removal directions will be able to find a lawyer who would be ready, willing and able to provide legal advice within the time available prior to removal let alone in an appropriate case to challenge those removal directions. There is a very high risk if not an inevitability that the right of access to justice is being and will be infringed. Miss Rose suggested that the Secretary of State could have provided at her expense an independent lawyer to advise those served with abridged notice.
173. Unfortunately, there are no adequate safeguards built in to the present policy which would ensure that removal could not take place. If somebody had been given very short notice of removal and then in the time available before removal it was impossible for him to contact a lawyer and to obtain advice ."
Limitation
Information in the public domain
"53. The Claimant refers in its grounds of claim to events in May 2007, when the YJB was asked under the Freedom of Information Act 2000 to release the 2005 PCC manual to CRAE. Initially, pages 1-59 were released by YJB, and the remaining content withheld. This was because the remaining content was believed to be exempt from disclosure by virtue of Section 31(1)(f) of the FOI Act. Information is exempt in this category if its disclosure would be likely to prejudice the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained. YJB were of the view that the withheld sections gave detailed descriptions of how the holds were applied and that the release of this detailed information might then be used to undermine security in such institutions. It was therefore believed by YJB that it was not within public interest to disclose the whole manual.
54. This genuine belief by those dealing with the request at the time led to the commencement of an appeal against a decision by the Information Commissioner to provide such disclosure, However the YJB ultimately decided that the 2005 Manual could be disclosed, and this occurred in July 2010."
"Before and at the time of Adam's death, PCC was regularly used at Hassockfield in circumstances not permitted by the contract between the Home Office and Serco, the STC Rules and the Director's Rules.
Before and at the time of Adam's death, [there was] a serious system failure in relation to the use of PCC at Hassockfield, giving rise to an unlawful regime."
The European Convention on Human Rights
Article 6
" The Commission, for their part, attach great importance to the expression 'rule of law' which, in their view, elucidates Article 6 (1).
The 'selective' nature of the Convention cannot be put in question. It may also be accepted, as the Government have submitted, that the Preamble does not include the rule of law in the object and purpose of the Convention, but points to it as being one of the features of the common spiritual heritage of the member States of the Council of Europe. The Court however considers, like the Commission, that it would be a mistake to see in this reference a merely 'more or less rhetorical reference', devoid of relevance for those interpreting the Convention. One reason why the signatory Governments decided to 'take the first steps for the collective enforcement of certain of the Rights stated in the Universal Declaration' was their profound belief in the rule of law. It seems both natural and in conformity with the principle of good faith to bear in mind this widely proclaimed consideration when interpreting the terms of Article 6 (1) according to their context and in the light of the object and purpose of the Convention.
This is all the more so since the Statute of the Council of Europe, an organisation of which each of the States Parties to the Convention is a member, refers in two places to the rule of law: first in the Preamble. where the signatory Governments affirm their devotion to this principle, and secondly in Article 3 which provides that 'every Member of the Council of Europe must accept the principle of the rule of law '.
And in civil matters one can scarcely conceive of the rule of law without there being a possibility of having access to the courts.
35.
The principle whereby a civil claim must be capable of being submitted to a judge ranks as one of the universally 'recognised' fundamental principles of law; the same is true of the principle of international law which forbids the denial of justice. Article 6 (1) must read in the light of these principles.
Were Article 6 (1) to be understood as concerning exclusively the conduct of an action which had already been initiated before a court, a Contracting State could, without acting in breach of that text, do away with its courts, or take away their jurisdiction to determine certain classes of civil actions and entrust it to organs dependent on the Government. Such assumptions, indissociable from a danger of arbitrary power, would have serious consequences which are repugnant to the aforementioned principles and which the Court cannot overlook.
It would be inconceivable, in the opinion of the Court, that Article 6 (1) should describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is, access to a court. The fair, public and expeditious characteristics of judicial proceedings are of no value at all if there are no judicial proceedings."
"2. Compliance
85. The Court will consider whether the non-disclosure of documents operated to deprive the applicants of effective access to the PAT or of a fair hearing before that tribunal.
It observes that, in order to succeed before the PAT, the applicants had to raise, on reliable evidence, a reasonable doubt regarding the question whether or not their health problems were causally linked to their service in the armed forces. Since they alleged that the various conditions from which they suffered had been caused by their exposure to harmful levels of radiation during the Christmas Island tests, it was necessary for them to adduce reliable evidence giving rise to a reasonable doubt, inter alia, that the MOD's statement that they had not been so exposed was incorrect.
86. The Court considers that, if it were the case that the respondent State had, without good cause, prevented the applicants from gaining access to, or falsely denied the existence of, documents in its possession which would have assisted them in establishing before the PAT that they had been exposed to dangerous levels of radiation, this would have been to deny them a fair hearing in violation of Article 6(1)."
"At no stage either before or during the police interview did the respondent receive advice from a lawyer on the question whether he should exercise his right of access to a solicitor before being questioned or during the questioning. Nor was he given an opportunity to seek legal advice on this matter before he decided whether or not he should exercise it. The question is whether he can be taken to have validly waived his right of access to a lawyer without having received advice from a lawyer on this point. In other words, does article 6(1) read with article 6(3)(c) of the Convention require, as a rule, that a person must have had legal advice before he can be taken to have waived that right?"
"46. I do not think that the Strasbourg jurisprudence provides any support for the Lord Justice Clerk's statement in Jude v HM Advocate 2011 SLT 722, para 32 that the argument for the Crown that the appellants' right of access to a lawyer was capable of being waived failed because their consent to be interviewed was not informed by legal advice . I would hold therefore that the statements in Jude which indicate that there is such a rule should be disapproved. Where the accused, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily.
47. There is however a theme that runs through the Strasbourg court's decisions which indicates that access to a lawyer may well be a necessary prerequisite of a valid waiver in some cases . The court must be alive to the possibility that the words of the caution, and advice that the detainee has the right to a private consultation with a solicitor before any questioning begins and at any other time during such questioning which is required by section 15A(3), may not be fully understood by everyone. Comprehending the Scottish caution: Do offenders understand their right to remain silent? David J Cooke and Lorraine Philip (1998) Legal and Criminological Psychology 13, was written some time ago and does not fully reflect current practice. But it serves as a warning that it should not be taken for granted that everyone understands the rights that are being referred to. People who are of low intelligence or are vulnerable for other reasons or who are under the influence of drugs or alcohol may need to be given more than standard formulae if their right to a fair trial is not to be compromised."
"66. As Lord Hope points out there are several decisions of the court where all that was required for the purposes of a valid waiver was proof that the accused had been informed that he had the right to have a lawyer present when he was interviewed and he refused to exercise that right. Thus in Yoldas v Turkey, for example, the accused was informed of his right to be assisted by a lawyer while he was in custody and he refused a lawyer's services. That was enough to persuade the court that the accused had sufficient foresight of the consequences of his decision to refuse the assistance of a lawyer to constitute a valid waiver. It was not necessary to go further and be satisfied that the accused understood precisely how the lawyer might have been able to assist him and from what pitfalls he might have been able to protect him. That could not have been done, not least because it would have been impossible to predict what course the interview would take.
67. On the other hand, if there are reasonable grounds for believing that the accused is vulnerable in some way and that he does not understand in general terms that a lawyer might be able to assist him at the interview, then it is not enough for the police merely to ask him whether he wishes to have the assistance of a lawyer. Additional safeguards are necessary to ensure that such a person does not waive his right to legal assistance at the interview without a proper understanding of the significance of what he is doing. The most obvious way of achieving this is by the provision of legal advice on the question of legal assistance. Depending on the circumstances, however, there may be other ways of ensuring that the accused understands the implications of refusing the assistance of a lawyer at interview.
68. It will be a question of fact in each case whether the accused can reasonably understand the implications of refusing the assistance of a lawyer at police interview. The ultimate question is what fairness demands in the particular case. Lord Hope has referred to a number of cases where for one reason or another there were grounds for doubting whether an accused had sufficient understanding of the implications of refusing the assistance of a lawyer. Another case where the court held that the accused had not waived his article 6 rights because it had not been established that he would have understood the implications of his doing so is Panovits v Cyprus (Application No 4268/04) (unreported) 11 December 2008. At para 71, the court said:
"Moreover given the lack of assistance by a lawyer or his guardian, it was also unlikely that he could reasonably appreciate the consequences of his proceeding to be questioned without the assistance of a lawyer in criminal proceedings concerning the investigation of a murder "
69. The court had earlier emphasised "the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings" (para 68). He was 17 years of age at the material time."
Articles 3 and 8
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 19
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 37
States Parties shall ensure that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
Article 39
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse; torture or any other form of cruel, inhuman or degrading treatment or punishment; or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
V. JUSTICIABILITY OF RIGHTS
24. For rights to have meaning, effective remedies must be available to redress violations. This requirement is implicit in the Convention and consistently referred to in the other six major international human rights treaties. Children's special and dependent status creates real difficulties for them in pursuing remedies for breaches of their rights. So States need to give particular attention to ensuring that there are effective, child-sensitive procedures available to children and their representatives. These should include the provision of child-friendly information, advice, advocacy, including support for self-advocacy, and access to independent complaints procedures and to the courts with necessary legal and other assistance. Where rights are found to have been breached, there should be appropriate reparation, including compensation, and, where needed, measures to promote physical and psychological recovery, rehabilitation and reintegration, as required by article 39.
25. As noted in paragraph 6 above, the Committee emphasizes that economic, social and cultural rights, as well as civil and political rights, must be regarded as justiciable. It is essential that domestic law sets out entitlements in sufficient detail to enable remedies for non-compliance to be effective.
43. Where, despite prohibition and positive education and training programmes, cases of corporal punishment come to light outside the family home - in schools, other institutions and forms of alternative care, for example - prosecution may be a reasonable response. The threat to the perpetrator of other disciplinary action or dismissal should also act as a clear deterrent. It is essential that the prohibition of all corporal punishment and other cruel or degrading punishment, and the sanctions that may be imposed if it is inflicted, should be well disseminated to children and to all those working with or for children in all settings. Monitoring disciplinary systems and the treatment of children must be part of the sustained supervision of all institutions and placements which is required by the Convention. Children and their representatives in all such placements must have immediate and confidential access to child-sensitive advice, advocacy and complaints procedures and ultimately to the courts, with necessary legal and other assistance. In institutions, there should be a requirement to report and to review any violent incidents.
89. The Committee wishes to emphasize that, inter alia, the following principles and rules need to be observed in all cases of deprivation of liberty:
- Children should be provided with a physical environment and accommodations which are in keeping with the rehabilitative aims of residential placement, and due regard must be given to their needs for privacy, sensory stimuli, opportunities to associate with their peers, and to participate in sports, physical exercise, in arts, and leisure time activities;
- Every child of compulsory school age has the right to education suited to his/her needs and abilities, and designed to prepare him/her for return to society; in addition, every child should, when appropriate, receive vocational training in occupations likely to prepare him/her for future employment;
- Every child has the right to be examined by a physician upon admission to the detention/correctional facility and shall receive adequate medical care throughout his/her stay in the facility, which should be provided, where possible, by health facilities and services of the community;
- The staff of the facility should promote and facilitate frequent contacts of the child with the wider community, including communications with his/her family, friends and other persons or representatives of reputable outside organizations, and the opportunity to visit his/her home and family;
- Restraint or force can be used only when the child poses an imminent threat of injury to him or herself or others, and only when all other means of control have been exhausted. The use of restraint or force, including physical, mechanical and medical restraints, should be under close and direct control of a medical and/or psychological professional. It must never be used as a means of punishment. Staff of the facility should receive training on the applicable standards and members of the staff who use restraint or force in violation of the rules and standards should be punished appropriately;
- Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned;
- Every child should have the right to make requests or complaints, without censorship as to the substance, to the central administration, the judicial authority or other proper independent authority, and to be informed of the response without delay; children need to know about and have easy access to these mechanisms;
- Independent and qualified inspectors should be empowered to conduct inspections on a regular basis and to undertake unannounced inspections on their own initiative; they should place special emphasis on holding conversations with children in the facilities, in a confidential setting.
"20. In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
"While it is our task to interpret the Human Rights Act 1998, it is Strasbourg's task to interpret the Convention. It has often been said that our role in interpreting the Convention is to keep in step with Strasbourg, neither lagging behind nor leaping ahead: no more, as Lord Bingham of Cornhill said in Ullah but certainly no less: no less, as Lord Brown says, at para 106, but certainly no more. If Parliament wishes to go further, or if the courts find it appropriate to develop the common law further, of course they may. But that is because they choose to do so, not because the Convention requires it of them."
"105. The ultimate decision upon this question, of course, must necessarily be for the European Court of Human Rights. As Lord Bingham of Cornhill observed in Ullah "the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court." In the same paragraph Lord Bingham made two further points: first, that a national court "should not without strong reason dilute or weaken the effect of the Strasbourg case law"; secondly that, whilst member states can of course legislate so as to provide for rights more generous than those guaranteed by the Convention, national courts should not interpret the Convention to achieve this: the Convention must bear the same meaning for all states party to it. Para 20 ends: "The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
106. I would respectfully suggest that last sentence could as well have ended: "no less, but certainly no more." There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg. Ullah, of course, was concerned with the particular scope of individual Convention rights, there article 9, in the context of removing non-nationals from a member state. Lord Bingham's cautionary words must surely apply with greater force still to a case like the present. As the Grand Chamber observed in Bankovic v Belgium
'the scope of article 1 is determinative of the very scope of the contracting parties' positive obligations and, as such, of the scope and reach of the entire Convention system of human rights' protection.'"
19. . The consistency between [the passage quoted from Brown v Stott] and what he said in [Ullah] shows that Lord Bingham saw this as fundamental to a proper understanding of the extent of the jurisdiction given to the domestic courts by Parliament. Lord Kerr JSC doubts whether Lord Bingham intended that his discussion of the issue should have the effect of acting as an inhibitor on courts of this country giving full effect to Convention rights unless they had been pronounced upon by Strasbourg: para 128, below. I, for my part, would hesitate to attribute to him an approach to the issue which he did not himself ever express and which, moreover, would be at variance with what he himself actually said. Lord Bingham's point, with which I respectfully agree, was that Parliament never intended to give the courts of this country the power to give a more generous scope to those rights than that which was to be found in the jurisprudence of the Strasbourg court. To do so would have the effect of changing them from Convention rights, based on the treaty obligation, into free-standing rights of the court's own creation.
20. That is why, the court's task in this case, as I see it, is to identify as best it can where the jurisprudence of the Strasbourg court clearly shows that it stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies."
"86. Like Lord Hope DPSC, I too would in the present context give full weight to what has come to be known as the Ullah principle . It would seem to me quite wrong for this court now to interpret article 6 of the Convention as laying down an absolute exclusory rule of evidence that goes any wider than Strasbourg has already clearly decided to be the case. And whatever else one may say about the Strasbourg jurisprudence, it can hardly be regarded as deciding the present issue clearly in the accused's favour."
"100. I accept, however, that there is no "clear and constant" Strasbourg jurisprudence on the point. So the obligation in section 2 of the Human Rights Act 1998 to take account of judgments of the European court does not compel a decision one way or the other . Nor is this a case where, although Strasbourg has not expressly decided the point, it can nevertheless clearly be deduced or inferred from decisions of the European court how the court will decide the point if and when it falls to be determined.
101. [Lord Dyson referred to the various statements of the Ullah principle.]
102. But these statements are not entirely apposite where Strasbourg has spoken on an issue, but there is no clear and constant line of authority. That is the case here because there is only one case in which the European court has expressly decided that the Salduz principle [Note: a reference to Salduz v Turkey (2008) 49 EHRR 421] does not apply in relation to the interrogation of a suspect who is not in detention . Moreover, despite the view I have expressed earlier in this judgment, I accept that it is arguable that the language of para 55 of the judgment in Salduz's case can and should be interpreted as holding that the Salduz principle does apply in such circumstances.
103. So what should a domestic court do in this situation? Recognising that it is our duty to give effect to the domestically enacted Convention rights, I think that the correct approach was suggested in the judgment of Lord Mance JSC in Smith's case [2011] 1 AC 1, para 199:
"However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention."
104. The position here is that Strasbourg has decided a case which is directly in point . The most that can be said on behalf of the accused is it is arguable that there are mixed messages in the Strasbourg case law as to whether the Salduz principle applies to evidence obtained from a suspect who has been interrogated without access to a lawyer outside the police station. To use the words of Lord Mance JSC, it follows that there is a real judicial choice to be made. Whether fairness requires the Salduz principle to apply in both situations raises questions of policy and judgment on which opinions may reasonably differ and as to which there is no inevitable answer .
105 In these circumstances, I consider that caution is particularly apposite and that the domestic court should remind itself that there exists a supranational court whose purpose is to give authoritative and Europe-wide rulings on the Convention. If it were clear, whether from a consideration of the Strasbourg jurisprudence or otherwise, that the Salduz principle applies to statements made by suspects who are not detained or otherwise deprived of their freedom of action in any significant way, then it would be our duty so to hold. But for the reasons that I have given, it is not clear that this is the case. In these circumstances, we should hold that the Salduz principle is confined to statements made by suspects who are detained or otherwise deprived of their freedom in any significant way."
"34. The House is, of course, free to depart from its earlier decision and to follow that of the Strasbourg court. As Lord Bingham said in [Ullah] it is ordinarily the clear duty of our domestic courts to give practical recognition to the principles laid down by the Strasbourg court as governing the Convention rights as the effectiveness of the Convention as an international instrument depends on the loyal acceptance by member states of the principles that, as the highest authority on the interpretation of those rights, it lays down. Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 which was issued on 26 July 1966 states that, while the House will still treat its former decisions as normally binding, it would depart from a previous decision when it appeared right to do so. In Lewis v Attorney General of Jamaica [2001] 2 AC 50, 88, Lord Hoffmann drew attention to the evil which would follow if the power to overrule previous decisions of the Privy Council were exercised too readily: see also R v Kansal (No 2) [2002] 2 AC 69, paras 20-21, per Lord Lloyd of Berwick. But it is obvious that the interests of human rights law would not be well served if the House were to regard itself as bound by a previous decision as to the meaning or effect of a Convention right which was shown to be inconsistent with a subsequent decision in Strasbourg. Otherwise the House would be at risk of endorsing decisions which are incompatible with Convention rights."
"I would also like to express my agreement with Lord Hope when he says that the order which he proposes reflects the fact that our decision is simply that the article 8 rights of Ms Purdy entitle her to be provided with guidance from the Director as to how he proposes to exercise his discretion under section 2(4) of the 1961 Act. As judges, we are concerned with applying the law, not with changing the law: that is a matter to be decided by Parliament."
Conclusion
Rationality
"(c) There is no positive duty for the Defendant or any other person to seek out individuals who might potentially be aggrieved (whether they are or not), process their personal data and either provide their details (constituting sensitive personal data) to the Claimant organisation, or to use that sensitive personal data in order to contact such individuals himself, with a view to suggesting, encouraging or prompting them to institute proceedings where those individuals have not used any of the extensive existing available remedies if they had been or are aggrieved .
(d) There is no justifiable basis under the Data Protection Act 1998 for the Defendant to process sensitive personal data of individuals in the way suggested without the consent of the data subjects in these circumstances, particularly given the normal rights and access to remedies that exist for individuals if they are aggrieved and the potential interference with their rights to private life in processing their data in the way suggested.
(e) Even if there had been any legal basis for the claim, or for the existence of the failure of the type alleged the timing of the claim and the events said to be in question mean that there is no justifiable or proportionate basis for requiring such action in any event."
Standing
Proceedings.E+W+S+N.I.
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the unlawful act.
(2) .
(3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act.
(4) .
(5) Proceedings under subsection (1)(a) must be brought before the end of -
(a) the period of one year beginning with the date on which the act complained of took place; or
(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,
but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.
(6) In subsection (1)(b) "legal proceedings" includes -
(a) proceedings brought by or at the instigation of a public authority; and
(b) an appeal against the decision of a court or tribunal.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act.
"65. section 7(7) provides that for the purposes of section 7, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights. By that article that court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. Strasbourg case law treats a person as a victim within the meaning of article 34 if they run the risk of being directly affected by a law or other act of state interference which violates their Convention rights (see Marckx v Belgium (1979) 2 EHRR 330; Institut de Prκtres Franηais v Turkey 92-A DR 15 (1998) Appl. No. 26308/95)."
"Judicial review and other legal proceedings
(1) The Commission shall have capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function.
(2) The Commission shall be taken to have title and interest in relation to the subject matter of any legal proceedings in Scotland which it has capacity to institute, or in which it has capacity to intervene, by virtue of subsection (1).
(3) The Commission may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c. 42) (breach of Convention rights); and for that purpose-
(a) the Commission need not be a victim or potential victim of the unlawful act to which the proceedings relate,
(b) the Commission may act only if there is or would be one or more victims of the unlawful act,
(c) section 7(3) and (4) of that Act shall not apply, and
(d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies);
and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section."
"[14] However having reflected upon this matter at length I have reluctantly been drawn to the conclusion that the applicant is not a victim within the terms of Section 7(1) of HRA 1998 for the following reasons:
[15] Claims under the HRA 1998 must satisfy a stricter test of standing than claimants for judicial review. The victim standing test has been adopted from the Strasbourg institutions by Parliament. Mr O'Hara QC correctly drew my attention to the attempts that were made during the Committee stage of the Bill in the House of Commons as outlined in "Human Rights Law and Practice" 2nd edition by Lester and Pannick at para. 2.7.3 footnote 3 where the authors record:
"It is understandable that the 'victim' test should be applied under the Act where Convention rights are relevant to private law proceedings where a plaintiff needs to have a personal interest. But the test is unsuitable for public law proceedings raising issues of general importance where reliance on Convention rights may form only part of the case being presented by an applicant who is not a victim but has a sufficient interest to bring judicial review proceedings on other grounds. Unless flexibly applied, the 'victim' test will have the unfortunate consequence that an applicant will be able to raise some grounds of challenge, but not others, and the court will be prevented from considering whether Convention rights are being denied. The dangers were explained by Lord Lester of Herne Hill, QC during the Committee stage of the Bill in the House of Lords on 24 November 1977 and by Lord Slynn of Hadley and Lord Lester of Herne Hill QC during the third reading debate in the House of Lords on 5 February 1998 . where the House of Lords rejected a proposed amendment to substitute a 'sufficient interest' test for raising Convention issues in judicial review proceedings. In a letter to the Lord Chancellor dated 17 February 1998, Lord Woolf MR expressed his concern, and that of other members of the judiciary, about the adoption of a 'victim' test."
I am confined by the considered wording of an Act of Parliament to an examination of a concrete case and I cannot review any system of domestic law in abstracto no matter how flexibly I strive to apply the victim test. There is no specific case before me where a child is a victim and I cannot permit a complaint against this law in abstracto simply because the Commissioner feels, however sincerely, it contravenes the Convention unless she is a victim.
[16] In addition to [In the Matter of An Application by the Committee on the Administration of Justice and Martin O'Brien for Judicial Review [2005] NIQB 25] that I have referred to in paragraph 9 of this judgment 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). A trade union may only be a victim if its own rights under the Convention have been breached. Equally it may provide assistance to individual applicants who are complaining about breaches of their rights. I consider that the role of the Commissioner is to be seen in a similar light. The 2003 legislation clearly empowers the Commissioner to protect children's rights in a number of disparate ways. This includes assisting members of the public understand what the rights of children are, setting out methods of vindicating those rights, advising Government about some of the powers open to the office and of course bringing proceedings in her own right. How the Office of the Commissioner discharges its duties and resources its functions are all matters for the Commissioner to decide. However I find nothing in the 2003 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. In my view to provide the Commission with a power, notwithstanding the provisions of s 7 of the HRA 98, to seek judicial review of the policies or actions or omissions of a Government body or public authority where it has reason to believe that such policies or actions or omissions have resulted, or are likely to result, in a violation of Convention rights, would require an amendment to s 7 of the HRA98 itself in circumstances where that power has not been conferred on the Commissioner in the 2003 legislation. To accede to Ms Higgins submissions, would require the Human Rights Act to be read alongside later legislation which impliedly amended it. I consider this would be inconsistent with its status as a constitutional statute setting out in one place the legal regime for the vindication of fundamental rights. This can only be achieved through a provision or amendment in the Commissioner's founding legislation. The notion of flexibly applying the "victim test" does not translate into express defiance of the express wording of s7 of the HRA98."
Overall conclusion
Expression of thanks
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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THE CHILDREN'S RIGHTS ALLIANCE FOR ENGLAND |
Claimant |
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- and - |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
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- and - |
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G4S CARE AND JUSTICE SERVICES (UK) LIMITED |
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- and - |
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SERCO PLC |
Interested Parties |
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James Strachan (instructed by The Treasury Solicitor) for the Defendant
Jason Beer QC (instructed by DWF Solicitors) for the Interested Parties
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RULING ON COSTS AND PERMISSION TO APPEAL
Crown Copyright ©
Mr Justice Foskett :
Costs
Permission to appeal
Stay
Order