“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.”
“However, a distraction technique used as part of, or as an adjunct to, the restraint of a detainee for GOAD would be unlawful because it would have been used as part of an unlawful restraint procedure.”
“69... The figures were presented in the form of a bar chart... Broadly speaking, looking at, for example, the six-month period from March to August 2004, of the approximately 570 reported instances of restraint at Hassockfield, about 185 were recorded as having been for ‘non-compliance’. In the same period for the following year, of the approximately 470 instances of restraint, in the region of 200 were attributed to non-compliance. 70. After the end of 2005, and thus from the beginning of 2006 onwards, the bar charts [sc for Hassockfield STC] were presented in the form of discriminating between ‘unacceptable behaviour’ (the new expression for ‘non-compliance’) and ‘other’ reasons. In the four-month period from January to April 2006 no instances of restraint for ‘unacceptable behaviour’ were recorded out of the total of 298 instances in total. However, from May onwards this reason was recorded and, by way of example, in May it would seem that exactly half of the 22 instances were attributed to ‘unacceptable behaviour’ and in June and July the majority of the occasions when restraint was used were so attributed. Over the next four months, proportionately speaking, the use of restraint for ‘unacceptable behaviour’ was less, but by December and then into the following year for the first five months or so, proportionately the majority of instances were attributed to ‘unacceptable behaviour’. From June through to December 2007, the proportion (and indeed the absolute numbers) diminished significantly. In the first three months of 2008 there were some instances recorded, though none in April, May and June of that year. In July 2008 about five occasions out of a total of 50 occasions were attributed to ‘unacceptable behaviour’. Thereafter no such instances were recorded.”
“76... [I]t is highly likely that a large number were indeed the subject of unlawful force at times during their detention, probably from the beginning of the STC regime until at least July 2008. Whilst the use of restraint for GOAD after July 2008 could, of course, have occurred, it is probable that no-one sought formally to justify the use of restraint for such a purpose after the judgment of the Court of Appeal in C. 77... [T]here can be little doubt that a large number of detainees were treated unlawfully at various times during this period. There is no reason to suppose that the situation was materially different at any other time in the history of the STCs at least until July 2008. There is other evidence in the material before me (that I do not need for this purpose to set out in detail) that distraction techniques... were also used as a regular part of the repertoire of force used in STCs. It is, as I have suggested before (see paragraph 14), difficult to see how a distraction technique would ordinarily be used in isolation from a restraint technique. If used as part of a restraint for GOAD, a painful (and often injury-producing) technique would have been used for an unlawful purpose. 78. Leaving aside any conclusion that may be drawn in due course about what the court could or should do about all this, it is, to say the least, a sorry tale...”
“[T]here is no escaping from the conclusion that the ‘monitoring’ of the STCs by the YJB appointed monitors during the period certainly up to mid-2004 failed to identify and/or act in relation to the unlawful use of force in the way subsequently revealed to have taken place.”
“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... 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.”
“The YJB has always been aware thatSection 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... 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... This whole paragraph [sc. paragraph 4.7 of the draft report] 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 toPCC. 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.”
“That there was confused thinking seems to have been acknowledged on behalf of the YJB at the first inquest into Adam Rickwood’s death in April/May 2007: see the evidence of Mr Paul Bowers, a senior member of the executive of the YJB and at the time of the inquest, Director of Secure Accommodation, quoted at paragraph 26 in Pounder. It was a matter taken up by the coroner with the Secretary of State thereafter: see paragraph 32 of the judgment in Pounder.”
“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.”
“I have never taken a narrow view of the functions of this House as an appellate tribunal. The common law must be developed to meet changing economic conditions and habits of thought, and I would not be deterred by expressions of opinion in this House in old cases. But there are limits to what we can or should do. If we are to extend the law it must be by the development and application of fundamental principles. We cannot introduce arbitrary conditions or limitations: that must be left to legislation. And if we do in effect change the law, we ought in my opinion only to do that in cases where our decision will produce some finality or certainty.”
“I do not consider that such a conclusion [sc. that the trainees might never get to know of the legal wrong done to them] can be justified. I say this for two potentially related reasons: first, whilst there is, of course, a law of limitation in the UK, it possesses a degree of flexibility where those who were ignorant of material facts at the time of the unlawful acts may obtain an effective extension of time for seeking redress; second, on the material presented to me there is availability already of information in the public domain about what happened within the STCs during the relevant period and steps could probably be taken even now by those affected if they wished to do so without the need to be told directly about it by the Defendant.”
“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.”
“If the Claimant’s case had rested solely on asserting the Convention rights of former detainees of the four STCs, I would have been obliged not even to consider the merits of the case before me.”
“The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”
“182. It is quite plain that there is no Strasbourg jurisprudence that identifies expressly the kind of positive obligation said to arise in this case, namely, an obligation, as Mr Strachan submits it is, that the State should take steps to contact potential victims having proactively sought to inspect the records of the STCs to identify such victims… 197… [T]he Ullah principle prevents this court from declaring that the kind of relief sought in this case is validly claimed on the basis of Convention rights.”
“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.”
“...the bottom line of the submission is that these considerations add up to an overwhelming need for the kind of action sought in the claim. He submits that the UNCRC and the comments made in relation to it add to the case under Article 6, and indeed the case under common law, that action of the kind sought is necessary to ensure effective access to justice.”