The Children’s Rights Alliance for England v Secretary of State for Justice  EWHC 8 (Admin) (11 January 2012)
This decision of the England and Wales High Court held that whilst certain measures had been unlawfully perpetrated against young people in secure training centres, the Court had no jurisdiction to grant an order that the victims be identified and informed of their legal rights.
This case arises out of allegations of unlawfully executed types of restraints, used in contexts where reasonable force was not used on young persons housed in Secure Training Centres in the UK. STC’s are centres used to accommodate young persons who had been sentenced to terms of imprisonment or young persons serving periods of remand.
Whilst such young persons were housed within various STC’s, some were subjected to various restraint and/or compliance techniques to ensure ‘good order and discipline’. Following the death of a fourteen year old detainee in 2007, the Youth Justice Board agreed that some of restraining techniques should be banned. For the purposes of this case, the period complained of covered the period of 1998 to 2008.
The Children’s Rights Alliance for England (‘claimant charity’) alleged that young persons detained at various secure training centres in the UK had been unlawfully restrained under ‘Secure Training Centre Rules’. Such rules authorised the use of certain techniques against young persons whereby ‘reasonable force’ was used to ‘ensure good order and discipline on the part’ of detainees.
The claimant charity’s case relied on two limbs. Firstly, that the defendant was under a positive obligation to inform those who might have been subjected to unlawful restraint procedures to enable them to consider whether they wished to exercise a form of legal redress. Secondly, it was proposed that there was a common law and Convention obligation on the part of the defendant to inform young persons of the unlawful use of force; namely, force in breach of article 3 and article 8 of the Human Rights Convention and/or a trespass to the person and assault.
It was asserted that:
[The claimant] submits that unless the defendant takes steps sought in this application the State will remain in flagrant breach of its obligations under the Convention and, at the very least, the defendant should enable the victims to take steps to compel the State to do so by providing them with the necessary information.
The claimant maintained that the lack of precedent could not defeat the claim and they relied on the basic tenet of access to justice being, inter alia, that an individual should be advised of his/her legal rights when and if those rights had been infringed and what rights to challenge or redress were available to them.
The Judge disagreed with the claimant charity’s assertion that the Government had a positive legal obligation to identify victims and inform them of their right to seek legal redress. With respect to the argument that such an obligation was supported by common law, Foskett J reasoned,
I have reached this conclusion both on the narrower approach of considering what the common law requires so far as access to justice is concerned and on a broader appraisal of the factual situation that underlies the claim.
Additionally, it was held that such a contention was not supported by Convention precedent and Foskett J stated that no feature of the Strasbourg jurisprudence had gone far enough to impose such an obligation and that it was not open to domestic courts to move beyond the European Court of Human Rights in this particular area.
Relevance to the Victorian Charter
This case provides useful commentary about restraints on young persons whilst in custody and the importance of ensuring reasonable force is used at all times. It is a timely decision having regard to the fact that often the young persons housed in secure training centres (or equivalent juvenile detention centres) are often the most marginalised, socially disadvantaged and vulnerable members of the wider population. With reference to the Charter, this case is relevant by way of a person’s right to humane treatment when deprived of liberty. In addition, a person’s right to protection from torture and cruel, inhuman or degrading treatment or punishment may have application in a wider context.
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2012/8.html.
Carolina Lewin Soto is an Acting Senior Lawyer at the Legal Aid Commission of NSW and former lawyer at the Children’s Legal Service