West Law Report

Fatal flaws in making new child restraint rules

Posted in Times Law Report by mrkooenglish on October 23, 2008

From The Times
October 14, 2008
Fatal flaws in making new child restraint rules
Court of Appeal
Published October 14, 2008
Regina (C) v Secretary of State for Justice
Before Lord Justice Buxton, Lord Justice Tuckey and Lord Justice Keene
Judgment July 28, 2008

Secondary legislation laid before Parliament three weeks after a report sent by the Youth Justice Board to the directors of privatised secure training centres holding children, following two deaths in custody, was quashed as procedurally flawed and in breach of the European Convention on Human Rights.

The Court of Appeal allowed the appeal of C, from the Queen’s Bench Divisional Court (Lord Justice Maurice Kay and Mr Justice Burton) ([2008] EWHC 171 (Admin)) who did not quash the Secure Training Centre (Amendment) Rules (SI 2007 No 3005) when finding that the Secretary of State for Justice had failed to consult the Children’s Commissioner or carry out a race equality impact assessment before introducing the amendment. The 2007 Rules, passed in the absence of negative resolution by Parliament, added to rule 38 of the Secure Training Centre Rules (SI 1998 No 472) justification for the use of physical restraint for the purposes of good order and discipline, as well as for preventing escape from custody, injury to oneself or others, damage to property or inciting another to do likewise.

Mr Patrick O’Connor, who did not appear below, and Mr Duran Seddon for C; Ms Nathalie Lievan, QC, who did not appear below, and Ms Sarah-Jane Davies for the secretary of state. Mr Richard Hermer and Ms Carolyn Hamilton for the Children’s Commissioner; Ms Karon Monaghan, QC, for the Equality and Human Rights Commission, both intervening by written submissions.

LORD JUSTICE BUXTON said all four secure training centres in England and Wales were operated by private contractors.

On April 19, 2004, Gareth Myatt, aged 15 and weighing six and a half stone, was asphyxiated while being restrained in a then-approved hold by three members of staff in Rainsbrook STC. A report by the parliamentary Joint Committee on Human Rights demonstrated an outrageous attitude on the officers’ part.

On August 8, 2004, Adam Rickwood. aged 14, was found hanging in his room at Hassockfield STC having been subjected to restraint by staff. The inquest into Adam Rickwood’s death revealed a good deal about practice in the use of physical control in care in secure training centres.

That included information that appeared to be unknown to the secretary of state despite what his Lordship supposed to be his public duty to monitor and control what was being done by the private contractors to whom he had chosen to entrust persons deprived of their liberty by the courts.

An inquiry by the serious case review panel of the Lancashire Safeguarding Children Board considered that what had been done was not in accordance with directions in the Youth Justice Board’s Physical Control in Care Training Manual.

The evidence and inquiries demonstrated that there were two issues of grave concern. First, physical control in care appeared to be being used where the law as set out in rule 38 of the 1998 Rules did not authorise it. Second, such techniques were being use that were inappropriate, excessive or positively forbidden. That should have required immediate attention by those running the centres and immediate attention by the secretary of state.

The contract for running those centres set out that rule 38 had to be complied with. But the centre took the view that what had been done in Adam Rickwood’s case had been entirely lawful. That was apparent from a statement by Mr Trevor Wilson-Smith, director at Hassockfield, and an employee of Serco Home Affairs, which held the contract.

He said, supported by leading counsel then instructed by Serco, that the secondary legislation was ultra vires section 9 of the Criminal Justice and Public Order Act 1994, and that rule 38 restricted the ability to maintain good order and discipline.

His Lordship said that Mr Wilson-Smith and leading counsel were wrong. Whatever the view of those running the centres, their contract made entirely clear what their obligations were; and they were inconsistent with the way Mr Wilson-Smith said he ran Hassockfield.

The Youth Justice Board, if not the secretary of state, was represented at the Rickwood inquest but there was no sign that he intervened to make clear that the policy asserted by the contractor was in breach of Serco’s contractual obligations. Small wonder, therefore, that the coroner wrote to the secretary of state recommending urgent clarification of the legal position.

That request had been anticipated by the Youth Justice Board which wrote, on May 27, 2007, to the directors of all the secure training centres, inter alia, that rule 38 had to be observed; that was reflected in the terms of the contract; that the board had been working with the ministry to amend the rules in line with previous consultation with the centres and rule changes were imminent.

The 2007 Rules were laid before Parliament three weeks later.

The secretary of state’s submission that the amendment rules were required to remove the uncertainty the coroner identified was inconsistent with the May 27 letter. What the letter made clear was that the rules were introduced, after consultation with those operating the secure centres, deliberately to change the legal position in order to legitimise the use of constraint for the purpose of good order and discipline; the practice that the evidence of the centre at the Ringwood inquest had not merely revealed but sought to justify.

The secretary of state’s submission that serious problems would arise in the running of secure training centres if physical control in care was not available to ensure good order and discipline was examined and rejected.

Secure children’s homes run by local authority social services departments, governed by different primary and secondary legislation, did not require physical restraint for good order and discipline. Those homes had a higher staffing ratio than secure training centres. It was hardly necessary to say that if the secretary of state was influenced in his policy of introducing physical control in care to enforce good order and discipline in secure training homes but not in local authority secure children’s homes to cover defects in staffing provisions in the former, commercially run establishments, then that would be fatal to any prospect of justifying that policy in human rights compliant terms.

The secretary of state’s case was that the introduction of the amendment rules represented no sufficient change in policy to require consultation with the Children’s Commissioner. His Lordship did not agree.

The secretary of state’s case was that the amendment legitimised existing practice. As the Divisional Court said: there was something unattractive about the secretary of state embracing the proposition that the practice was in accordance with government policy even if it contravened, inter alia, rule 38.

Section 71(1) of the Race Relations Act 1976 required a race equality impact assessment where it was proposed to change policy where that might raise issues about racial equality.

The Divisional Court rejected the secretary of state’s assertion that that was not required because his policy had not changed.

The absence of a racial equality impact assessment was a mistake by the secretary of state. It sent the wrong message to bodies with such responsibility to allow that defect to be cured by a review undertaken eight months after the 2007 Rules had been laid and in the face of an adverse court decision and completed only four days before the Court of Appeal hearing.

His Lordship did not doubt the good faith of the grade seven civil servant who produced the assessment. But as a matter of principle, it could not be right that a survey which should have been produced to inform the mind of government before introducing the 2007 Rules was produced only to attempt to validate the decision already made.

His Lordship considered that the rule of law and the proper administration of race relations law required the 2007 Rules to be quashed and he so ordered.

His Lordship went on to consider articles 3 and 8 of the Human Rights Convention and found that the 2007 Rules breached both.

Lord Justice Tuckey agreed and Lord Justice Keene delivered a concurring judgment.

Solicitors: Bhatt Murphy; Treasury Solicitor. Ms Katherine Swaine; Ms Brenda Parkes.

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