Use of Force and Restraint against Child Detainees

R(C) v Secretary of State for Justice [2008] EWCA Civ 882 (28 July 2008)

In this case, the England and Wales Court of Appeal held that rules introduced to maintain good order and discipline in children detained in Secure Training Centres (‘STCs’) should be quashed for breach of art 3 of the European Convention on Human Rights, which prohibits torture and other ill-treatment.

Facts

Four STCs were established in the UK to accommodate vulnerable teenagers in custody.  All are presently run by private contractors under agreements with the Secretary of State, and are operated in accordance with the terms of the operators' contracts, the Prison Act 1952 and STC Rules.

Until July 2007, physical restraint could only be used as a form of discipline in situations where it was necessary to prevent escape, damage to property or injury.  However, in June 2007, the Secure Training Centre (Amendment) Rules (‘Amendment Rules’) expanded the permissible use of restraint to cases in which it was necessary to maintain good order and discipline.  This form of restraint was referred to as physical control in care (‘PCC’), and had two elements:

  • Restraint: a number of specific holds to prevent damage or injury and also to restrict offences against good order and discipline until the offender agrees to comply.
  • Distraction technique: infliction of a momentary burst of pain to the nose, rib or thumb.  The technique is intended to distract a person in dangerous or violent situations in which there is a serious risk of injury to him or herself or to others.

On 19 April 2004, fifteen year old Gareth Myatt died as a result of asphyxiation while he was restrained by three members of staff.  He was three days into his six-month sentence.

On 8 August 2004, fourteen year old Adam Rickwood hanged himself by his shoelaces after being subjected to 'nose distraction.'  He had been a model trainee and the episode just prior to his death was the first incident of non-compliance.

Their cases were brought before the Divisional Court in an attempt to quash the Amendment Rules.

Decision

Divisional Court

The Divisional Court failed to quash the Amendment Rules because:

  • Parliament was aware and had held substantial debate about the limited consultation that had taken place about the Amendment Rules;
  • the Children's Commissioner and others had concerns that were overridden, and Parliament was aware of this; and
  • the Secretary of State intended to conduct a wide-ranging review of the issues involved with the Amendment Rules which was due to result in a report in April 2008 which would give any arising issues further consideration.

Court of Appeal

The Court of Appeal identified a number of errors in the lower court's reasoning:

  • With regard to the parliamentary debate, it is hazardous to draw on the conclusions of various speakers in a parliamentary debate, particularly when that debate has not passed to a vote.  Because parliament would be unaware of any procedural impropriety in the Amendment Rules, ‘it is therefore to courts, by way of judicial review, that recourse must be had to seek a remedy’ (Taylor LJ in R v Secretary of State ex p US Tobacco [1992] QB 353).
  • The Divisional Court also erred in its reliance on a prospective wide-ranging review as a reason for failure to intervene.  This reasoning suffered from the same problem identified by Taylor LJ in relation to the parliamentary process; review does not account for the process by which PCC was extended to good order and discipline.
  • The Divisional Court erred in failing to view the omission of the Race Equality Impact Assessment, an important instrument in guarding against racial discrimination, as serious.  ‘Inattention to [REIAs] is both unlawful and bad government’ (Sedley LJ in R (BAPIO) v SSHD [2007] EWCA Civ 1139).  This failure was made all the more troubling by the fact that the majority of children detained in STCs come from a wide range of ethnic backgrounds.

The state's obligations under art 3 to detainees in STCs

Buxton LJ noted that although there is a tendency to view a state's obligations under art 3 as applicable only to situations of extreme violence, deprivation or humiliation, jurisprudence from the European Court of Human Rights clearly states that it can be engaged by conduct falling below this level.  Circumstances imposing such obligations on the state are:

  • when the subject is dependent on the state because s/he has been deprived of liberty; and
  • if s/he is young and vulnerable.

In support of this conclusion Buxton LJ referred with approval to the decision in Selmouni v France (1999) 29 EHRR 403 at 99-100: ‘the minimum severity required for the application of article 3 is, in the nature of things, relative; it depends on all the circumstances of the case…the duration of the treatment, its physical and mental effects and, in some cases, the age and state of health of the victim.’

The state's obligations to children

In outlining the state's obligations to children, Buxton LJ relied on several judgments by Baroness Hale of Richmond:

  • In R (R) v Durham Constabulary [2005] 1 WLR 1184, she noted that European jurisprudence requires art 3, as it applies to children, to be interpreted in light of international conventions.  In particular, interpretation must take into account art 37(c) of the Convention on the Rights of the Child, which provides that 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 own age.
  • In R(Williamson) v Secretary of State for Education [2005] 2 AC 246, she emphasized that the UN Committee on the Rights of the Child is charged with monitoring compliance with obligations undertaken to respect the rights of children.  Further, General Comment 8 of the UN Committee states that the deliberate infliction of pain is not permitted as a form of control of juveniles.

PCC viewed in relation to art 3 of the ECHR

The court had little hesitation in saying that any system that involves physical intervention against another's will is, ‘in any normal understanding of language degrading and an infringement of human dignity.’

Because the Secretary of State could not establish that PCC is necessary to establish good order and discipline, the Amendment Rules which brought PCC into effect were in breach of art 3 and should be quashed.

Relevance to the Victorian Charter

This case could potentially engage at least three rights in the Charter:

  • s 10, which recognizes a person's right not to be treated or punished in a cruel, inhuman or degrading way;
  • s 22, which recognizes a person's right to be treated humanely when deprived of liberty; and
  • s 23, which recognizes the rights of children in the criminal process.

However, it is most clearly applicable as an example of rules that would be in breach of the s 10 rights of children living in custody.  The prohibition on cruel, inhuman or degrading treatment under s 10 is modeled on art 7 of the International Covenant on Civil and Political Rights, one of the few absolute rights in the ICCPR.  The Human Rights Committee affirmed in General Comment No 20 that no justification or extenuating circumstances may be invoked to excuse a violation of art 7.

The decision is available at http://www.bailii.org/ew/cases/EWCA/Civ/2008/882.html.

Louise Fahy is a lawyer with DLA Phillips Fox

MichelleBennettChild Rights, Prisoner Rights