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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Willow v The Information Commissioner Ministry of Justice [2017] EWCA Civ 1876 (22 November 2017) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1876.html Cite as: [2017] EWCA Civ 1876 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Upper Tribunal Judge Kate Markus Q.C.
GIA/428/2015, [2016] UKUT 157 (AAC)
Strand, London, WC2A 2LL |
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B e f o r e :
(SIR BRIAN LEVESON)
LORD JUSTICE McCOMBE
and
LORD JUSTICE NEWEY
____________________
CAROLYNE WILLOW |
Appellant |
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- and - |
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THE INFORMATION COMMISSIONER MINISTRY OF JUSTICE |
Respondents |
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Gerry Facenna Q.C & Laura Elizabeth John (instructed by Richard Bailey, Solicitor, Information Commissioner's Office) for the First Respondent
Oliver Sanders Q.C. (instructed by The Treasury Solicitor) for the Second Respondent
Hearing date : 1 November 2017
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Crown Copyright ©
Sir Brian Leveson P :
Background
"This sentence has been redacted. It describes how members of staff will take hold and control the young person's arm, hand, and thumb without applying undue pressure or pain when employing the inverted wrist hold."
"… considered on balance, the likely threat to the good order and security of YOIs and prisons and the safety implications of this for young people and staff in both YOIs and prisons favours non-disclosure of the un-redacted version of the MMPR training manual."
"the MMPR… will also be used in Young Offender Institutions (YOIs), and there are significant differences between YOIs and STC's and the young people detained within them. YOIs accommodate an older group of young people, many of whom demonstrate a much higher level of dangerous and violent behaviour towards both other young people and staff alike. Staff must be able to respond to these situations in a way that supports the maintenance of health and safety of both the young person and others. Furthermore there are similarities between the application of some of the techniques included in MMPR and those included in Control and Restraint (C&R), the restraint system used in adult prisons…
Finally I wanted to address the concerns you raise that the arguments in favour of disclosure made in the response of 6 August do not make specific reference to child protection or children's rights obligations. Those arguments clearly refer to a public interest in ensuring that young people are treated humanely and decently, and that the health and safety of young people is considered in the development and deployment of MMPR… There are also many arguments in favour of non-disclosure that relate to child protection or children's rights obligations. For instance, restraint techniques are often used in order to end a violent assault by one or more young people on another young person. It is therefore essential that staff can be confident in using restraint techniques, and not concerned that in doing so both their health and safety and that of young people may be open to compromise".
"20. The Tribunal considered that given the extent and detail of what is already in the public domain the benefit in terms of transparency and of public confidence in the lawfulness and humanity of the system was limited. It noted the extent of supervision of the detention of young people and the need for recording of incidents. The Tribunal did not consider that the investigation of incidents would be obstructed by the protection of the contents of the MMPR and its non-disclosure to the world at large.
21. It acknowledged that there was some force in the argument that few young people were likely to consult the manual and seek to learn from it how to resist restraint. The Tribunal noted that MMPR had been developed for an older age group than those detained in STCs. The client group within YOIs was older and could demonstrate the capacity for a higher level of dangerous and violent conduct to staff and other clients than those within STCs. In developing the techniques to safely and humanely control such clients; techniques used for adult prisoners and set out in the "Use of Force" manual used in adult prisons had been considered and where appropriate adopted or adapted. The Tribunal considered that the relevance of the manual to the far larger numbers of potentially violent adults within the prison sector, some of whom would clearly be capable of learning from and applying the manual, was decisive (it may be noted that Ms Willow was of the view that there were considerable similarities between MMPR and "Use of Force"; paragraph 7 above). The Tribunal endorsed the conclusion of the ICO in his letter to Ms Willow of 11 July 2013:-
"On balance, by quite a margin, the likely threat to the good order and security of YOIs and prisons and the safety implications of this for young people and staff in both YOIs and prisons favours non-disclosure of the withheld information"."
"In the present case, the Appellant had accepted the Commissioner's decision that prejudice was likely. … It is not now open to her to contend that there was not likely to be such prejudice nor that the tribunal should not have given weight to it. In the light of the agreed likely prejudice, the tribunal's task was to weigh the competing public interests for and against disclosure. There was little if anything that could be advanced by way of concrete evidence in that respect. It was a matter of judgment for the tribunal in the light of the facts."
"The present case does not fall within the principles stated by the Supreme Court in the above decisions. The relevant provisions of FOIA are not ambiguous, there is no issue under ECHR, and (even if this could in principle be relevant) FOIA does not incorporate or reflect the provisions of Article 3.1. Article 3.1 UNCRC has no application in this case."
The Freedom of Information Act 2000
"In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) (referring to the communication of information) does not apply if or to the extent that –
(a) the information is exempt information by virtue of a provision conferring absolute exemption, or
(b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information."
Irrationality
"connotes a degree of probability where there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there 'may very well' be prejudice to those interests, even if the risk falls short of being more probable than not"
That formulation was adopted by the Information Tribunal in Hogan v Information Commissioner [2010] 1 Info LR 588 (at [34]-[35]) which also referred to "a real and significant risk". In turn, Hogan was accepted as accurate in Department for Work and Pensions v Information Commissioner (supra) at [27] and [60].
"75. In our view correctly, it was accepted before us by the FCO and the IC that when assessing competing public interests under section 27 of FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote…
76. Such an approach requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice and (b) benefits that the proposed disclosure of the material in respect of which the section 27 (or for the purpose of these proceedings, the section 31) exemption is claimed would (or would be likely to or may) cause or promote. Plainly that includes an identification of the relevant material and the circumstances in which it was provided to or obtained by the body claiming the section 27 (or 31) exemption."
"10. The MoJ's case to the Commissioner was that disclosure of the techniques in the MMPR could lead to some people developing countermeasures to their application and that, since some of the techniques used in the MMPR were also used in adult prisons, countermeasures could also be developed by adult prisoners…The MoJ commented on this, explaining that there were fundamental differences between the two manuals and between the populations of SCTs [sic] and YOIs.
…
20. Moreover, the finding of risk in relation to older detainees and adults was adequately supported by the evidence. The MoJ had explained that the MMPR was different from the PCC but that there were similarities with the Use of Force Manual which is in use in adult prisons. It supported this with an explanation of the background to the development of the manuals, the differences in techniques and the characteristics of the different populations in the institutions. The Appellant's witness evidence was principally directed to the risk of children and young people learning from the MMPR, without distinguishing between different age groups. Insofar as she addressed issues relating to adult prisoners, the tribunal noted (paragraph 21) the Appellant's view that there were considerable similarities between the MMPR and the Use of Force manual."
The United Nations Convention on the Rights of the Child
"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."
"As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not a part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned it is res inter alios acta, from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations it is irrelevant."
"our domestic legislation has to be construed so far as possible so as to comply with the international obligations which we have undertaken… the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made by ratifying the [UNCRC]".
"Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as "a primary consideration". Of course, despite the looseness with which these terms are sometimes used, "a primary consideration" is not the same as "the primary consideration", still less as "the paramount consideration"."
"Article 3 UNCRC is contained in an international treaty ratified by the UK. It is binding on this country in international law. It is not, however, part of English law. Such a treaty may be relevant in English law in at least three ways. First, if the construction (ie meaning) of UK legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations. Second, international treaty obligations may guide the development of the common law… Neither has any application to this case. This case is concerned with legislation, not with the common law, and it is not suggested that there is any room for doubt about the meaning of the regulations. Thirdly, however, the UNCRC may be relevant in English law to the extent that it falls to the court to apply the European Convention on Human Rights (ECHR) via the Human Rights Act 1998. The European Court of Human Rights has sometimes accepted that the Convention should be interpreted, in appropriate cases, in the light of generally accepted international law in the same field, including multi-lateral treaties such as the UNCRC…".
"In accordance with R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696 , R v Lyons [2002] UKHL 44; [2003] 1 AC 976 , para 13 and R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, para 56, per Lord Brown of Eaton-under-Heywood with whose reasons Lord Bingham of Cornhill and Lord Rodger of Earlsferry agreed at paras 1, 9 and 15, a domestic decision-maker exercising a general discretion (i) is neither bound to have regard to this country's purely international obligations nor bound to give effect to them, but (ii) may have regard to the United Kingdom's international obligations, if he or she decides this to be appropriate."
Conclusion
Lord Justice McCombe :
Lord Justice Newey :