BP, R (on the application of) v Secretary of State for the Home Department [2003] EWHC 1963 (Admin)

Case No CO/1243/03[2003] EWHC 1963 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 17 July 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MOSES
Between
THE QUEEN ON THE APPLICATION OF BPClaimant-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR I WISE (instructed by The Howard League, 1 Ardleigh Rod, London N1 4HS) appeared for CLAIMANTMISS J RICHARDS (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T(As Approved by the Court)Crown copyright©

INTRODUCTION

[1]This claimant was 17 at the relevant time and is now 18. He was born on 21st March 1985. He is currently detained at the young offender institution at Onley, where he is serving a 12 months sentence for burglary and a further 11 months detention for breach of licence conditions in relation to a previous sentence. He is due to be released on 14th November 2003.[2]During his period at Warren Hill he has served two periods in the segregation unit. On 30th January 2003 he was ordered to spend five days on removal from his unit for possession of an unauthorised article (that was a dead mobile telephone). Following a suspended order on 10th February 2003 he received a similar punishment for failing to turn up to a roll check the day before; in respect of that offence he was sentenced by the Governor to four days removal from unit.[3]It is contended that the circumstances in which he was detained during those two periods amounted to a breach of the Young Offender Institution Rules 2000 ("the 2000 Rules") and breach of his rights enshrined either in Article 3 or Article 8 of the European Convention on Human Rights. It is contended that those circumstances were aggravated in their effect by reason of the claimant's mental condition.[4]A third issue is raised in relation to allegations of rape he had earlier made in respect of his detention at another establishment, namely the Young Offender Institution at Hunterscombe. HISTORY OF SELF-HARM AND SUICIDE The relevance of this history is as to the appropriateness of his being placed on a segregation unit and, in particular, as to the effect on him of the conditions in which he was detained there. There were three occasions when the procedures designed to care for those who posed a risk of self-harm or suicide were put into place. The procedure is described by William Styles, the Custody Governor, at Warren Hill. At paragraph 38 he describes the procedure known by the name of the relevant self-harm risk form, F20/52SH. Such a form can be opened by any member of staff who has concerns about a trainee. The consequences are that a close watch will be kept on the trainee with regular reviews of his progress.[5]The first period when he was placed on an F20/52SH was between 20th July 2002 and 11th August 2002. On that first occasion a member of the staff went to his cell and found a makeshift noose. The member of the staff recorded that he felt that this was an attempt on the claimant's life, although a poor one. The suggestion of that officer was that there should be a chat with a member of the chaplaincy on the Sunday. Thereafter, he was monitored at regular intervals. There was a detailed record kept virtually at hourly intervals over that period until the claimant became happier. By the end of the period on 11th August it was recorded that he seemed "a lot happier in himself" with no thoughts of self-harming. He was taken off that procedure.[6]The medical records show that he was seen by a medical officer. He was waiting to see a psychiatrist. He denied any suicide intent, but did not know how he would feel the next night. Two days later, the records show a diagnoses of depression, possible psychosis and it was recommended that he should be in a cell with a "listener" and see a psychiatrist.[7]The second occasion on which he was placed on this procedure took place between 4th and 21st September 2002. On that occasion he is recorded as claiming to have taken ten tablets which he had been saving up. He said it was because he no longer wanted to be there, but he said that he "no way wanted to kill himself but rather just wanted to move." It was recommended that he should be monitored by staff and seen outside hospital "for a possible stomach pump", although none was administered. He was to be observed at a regular but frequent intervals. Later on the review on 21st September, when it was recorded that he was more settled, he apologised for wasting staff time when he was taken to hospital. He had not taken those tablets, according to him. Again, the medical records record an investigation by medical officers, and it was recorded, certainly by 23rd September, that he was in a stable condition.[8]In July 2002 it was recorded that the claimant presented a significant risk of self-harm and para-suicidal behaviour. Dr Huges saw him in November 2002. He recorded on 27th November that the claimant denied any thoughts of actual plans to self-harm, and in his opinion said he wondered whether the investigation had been referred to. He recorded that the claimant had said he was not currently suicidal, although history suggests that he was still at risk. He was not at that stage placed on any self-harm procedure.[9]It was recorded on 27th December that the claimant had said he had taken some 40 paracetamols because he said he was being bullied. There is no medical evidence to support that. The medical reports say that on 27th December he was frightened to leave his cell and he was being bullied. It was said that the officers were fully aware of this.[10]Those are the incidents relating to his mental health in the period before the adjudications which led to him being removed from the unit. But under this heading I should record that after the second occasion, when he had been removed from his unit, on 13th February 2003 he showed a prison officer a noose hanging from his toilet and a number of tablets which he then proceeded to take. The medical report of that period found a number of tablets in his possession and some were removed. There was a query as to the suitability of providing further tablets; nothing more seems to have taken place. BREACH OF THE 2000 RULES As I have said, the first period when he was placed in the segregation unit followed an adjudication on 30th January 2003 after an incident the night before. He pleaded guilty. The adjudication recorded not only the five days removal from his wing but the forfeiture of a number of privileges, including canteen facilities to purchase and use private cash for seven days; an association in the dining/ recreation/entertainment for eight days and loss of the privilege of looking at television for 14 days.[11]The effect of that adjudication is described by the claimant himself. In his statement (which I understand has now been signed) he describes the segregation cells as being about 10ft by 8ft. He says that it was cold when it was cold outside. There was no heating in the cells, and a toilet and sink in the cells. He said he was not allowed reading materials, and denied that he was allowed jigsaw puzzles, books and a radio. He says there was nothing to do at all on segregation. The cells were dirty and grimy, although they were mopped. He was told to walk around the exercise yard in circles, and there was only him and one officer. He felt like a dog being taken for a walk. It was very boring, and he would usually only stay out for about ten minutes. He was not allowed to take a shower every day. He said when on the block he felt very paranoid:
"I had so much time to think I felt I was going a bit mad and that people were out to get me."
And then he describes feeling odd when he was taken back on to his normal unit.[12]Mr Styles, the Custody Governor, describes at paragraphs 29 and following, that all trainees have access to showers, telephones, domestic and official visits; served the same meals, and allowed at least one hour's exercise; they are seen by a governor grade daily and a medical officer on every day other than Sunday; they are allowed to attend religious services with other trainees; permitted in-cell activities such as jigsaw puzzles and books, and are allowed a radio. He records that the claimant, whilst on removal from unit, did not participate in training courses, education, physical education or work. He lost access to activities and association. But he does describe the number of visits by different officers, the chaplain, the Chair of the Board of Visitors, a health care officer and various other officials.[13]In his second statement, Mr Styles, between paragraphs 9 and 13, specifically denies the accuracy of the description of the life in the unit, and particularly the state of the unit. He says that apart from a small draught the cells are heated, and it is orderly and kept clean and tidy. A trainee is permitted to have his own possessions, unless they are removed as part of the adjudication award. Books and jigsaw puzzles were provided. He says that he recalls taking the claimant to the library.[14]The second period, as I have said, led to four days of the claimant being kept in similar conditions. Accordingly, there is a dispute as to the precise conditions in the cells which I am quite unable in the context of judicial review, without cross-examination, to resolve in the claimant's favour. I am not prepared to accept that the conditions in which the claimant was kept were as he describes. Not only are they contradicted by the evidence of Mr Styles, but there is independent evidence in the form of a report from the Chief Inspector of Prisons. She and her team made a fully announced inspection of the institution between 11th and 15th November 2002, and reported in March of this year. They did make criticisms of the use of the segregation unit but, as is plain from reading the report as a whole, that was related to the fact that the facility was shared with adults, who should not have been located in the same area. Other criticisms were made, but they were not made in relation to the condition of that segregation unit in any way which supports what the claimant says. This is surprising, bearing in mind he was detained within the unit after the visit of the inspectorate but before the inspectorate had reported. In those circumstances, I reject the description given by the claimant as to the conditions in which he was kept.[15]Nevertheless, it is clear that this claimant was deprived of education, training and physical education during the whole of that period (first of all five days and subsequently four days) when he was removed from the unit. Apart from visits to the showers, to the library and the exercise yard, which he found so boring, he was locked in his cell.[16]The first issue then arises as to whether that was an infringement of the Rules. The Young Offender Institution Rules 2000, as amended by the Young Offender Institution (Amendment) Rules 2002 (SI/2002 No 2117) provide at Rule 60, under the heading "Governor's Punishments":
"(1) If he finds an inmate guilty of an offence against discipline the governor may, subject to paragraph (3) and rule 65 impose one or more of the following punishments... (c) removal for a period not exceeding 21 days from any particular activity or activities of the young offender institution, other than education, training courses, work and physical education in accordance with rules 37, 38, 39, 40 and 41 [my emphasis]; ... (f) in the case of an offence against discipline committed by an inmate who was aged 18 or over at the time of the commission of the offence, other than an inmate who is serving the period of detention and training under a detention and training order pursuant to section 100 of the Powers of Criminal Courts (Sentencing) Act 2000, confinement to a cell or room for a period not exceeding ten days; (g) removal from his wing or living unit for a period not exceeding 21 days."
[17]Thus it is not open to the young offender institution to punish a trainee of the age of this claimant to confinement to a cell or room at all; the limit is to removal from his wing. Nor is it open to the Governor to deprive an inmate of education, training courses, work or physical education. Rule 62 provides:
"Following the imposition of a punishment of removal from his wing or living unit, an inmate shall be accommodated in a separate part of the young offender institution under such restrictions of earnings and activities as the Secretary of State may direct."
But it is not open to the institution under that provision to deprive a trainee of the right to attend the activities to which reference is made in Rule 61(c). This is made clear by Mr Harvey at paragraph 18 of his statement, in which he refers to the Prison Discipline Manual 1995, which at paragraph 7.31 says:
"... the young offender will take part in normal compulsory regime activities, including work, education, physical education and training, but will be held in a cell or room away from his or her wing or living unit the rest of the time. Governors and controllers must ensure that only the minimum loss of facilities results."
[18]The Code of Practice in relation to young offender institutions was at the time contained within Prison Service Order 4950, containing the regimes for prisoners under 18 years old. At 7.2.1 the objective is described as:
"To involve each young person every day in a variety of activities which are suited to their needs, abilities and potential and which make full and purposeful use of their time. 7.2.2 Mandatory requirements: (1) the daily routine must provide: a. at least 10 hours out of cell time, rising to 14 hours as resources allow; b. six hours purposeful activity."
At 7.5.3, in relation to managing bad behaviour at (iii), it says:
"The traditional concept of 'segregation' plays no part in separating a young person when circumstances recommend. The use of GOAD and cellular confinement, in which exercises is the only 'activity' and when little or nothing is done to address the causes of segregation is inappropriate. While it will be appropriate to remove a young person from taking part in activities with others, it will be an exceptional measure. Furthermore, such separation must be accompanied immediately by work with the young person to enable their return to the full range of daily activities."
[19]The Code of Practice relating to segregation under Rule 49, which is not part of the punishment procedures, is contained in Prison Order No. 1700. At paragraph 4 it is said that the principles of the segregation unit include to "treat all prisoners fairly and with dignity." At 1.1.10 it is said:
"Prisoners at risk of suicide or self-harm must not be routinely held in segregation units." 1.1.11: "
If the decision is taken to locate prisoners at risk of self-harm within the segregation unit this must only be for as short a period of time as possible. Throughout the period the prisoner considered at risk of self-harm is held in segregation, they must be subject to regular monitoring by staff."[20]The institution must also have regard to the principles identified by Munby J in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 Admin and [2003] 1 FLR 484. At paragraphs 65 to 69 he set out important principles designed to avoid breaches of Article 3 and 8 of the European Convention, and of the important principles contained within the United Nations Convention on the Rights of the Child 1989, and the Charter of Fundamental Rights to the European Union 2000 ("the European Charter"). In particular, at paragraph 66 he said that measures must be taken:
"... to ensure that: (i) children in YOIs are treated, both by members of the Prison Service and by fellow inmates, with humanity, with respect for their inherent dignity and personal integrity as human beings, and not in such a way to humiliate or debase them; (ii)children in YOIs are not subject to torture or to inhuman or degrading treatment or punishment by fellow inmates or to other behaviour by fellow inmates which impacts adversely and disproportionately on their physical or psychological integrity. (67)Such measures must strike a fair balance between the competing interests of the particular child and the general interests of the community as a whole (including the other inmates of the YOI) but always having regard: (i) first, to the principle that the best interests of the child are at all times a primary consideration; (ii)secondly, to the inherent vulnerability of children in a YOI."
Further, at paragraph 68, he said:
"In short, human rights law imposes on the Prison Service enforceable obligations, that is, obligations enforceable by or on behalf of children in YOIs: (i) To have regard to the 'welfare' principle encapsulated in the UN Convention and the European Charter; and (ii) to take effective steps to protect children in YOIs from any ill-treatment, whether at the hands of Prison Service staff or of other inmates, of the type which engages either Arts 3 or 8 of the European Convention. (69) In this connection it is to be borne in mind that, quite apart from any other remedies which there may be arising out of the State's - the Prison Service's - failure to meet its human rights obligations, ss 7 and 8 of the Human Rights Act 1998 enable a victim to bring free-standing action in the High Court."
[21]The breach of the 2000 Rules, as amended by the 2002 Rules, is accepted. Whilst it is not accepted that the conditions were as harsh as in the picture painted by the claimant, there was a clear breach in failing to provide education, training and physical education, contrary both to those Rules and to the Prison Order. It is not permitted to deprive a trainee, even when he is removed from a unit, of such facilities, or the facilities of a daily shower.[22]Mr Harvey, the official who is head of the Juvenile Group Secretariat in the Prison Service, accepts that there should not have been such deprivation from the normal compulsory regime activities; that that ought not to have occurred and he has given guidance to Warren Hill accordingly. So much is also accepted by Mr Styles. Mr Styles points out that a significant change has now taken place in the use of the accommodation currently called the segregation unit. He says it is in the process of being changed to a residential unit that will also serve as a reception, induction, first night care and intervention service for trainees who have been removed from the unit or segregated. It will be renamed, and those who are detained there for disciplinary reasons will receive structure and programmed assistance in challenging and changing their conduct with a view to their return to their normal unit. Whilst there, they will be engaged in significant and purposeful activity. He says that that regime has already started, in the sense that he says it was due to start in June 2003.[23]Nevertheless, I must record that what in fact happened to the claimant was a breach of Rule 61(f) read as a whole with the other rules, and a breach of the Prison Order 4950 at 7.2.2 and 7.5.3, a breach of the Prison Discipline Manual, and further that the failure in depriving the claimant of his minium regime activities was a failure to have regard to his best interests and to his inherent vulnerability contrary to the principles expressed by Munby J in the Howard League case, underpinned by those conventions to which Munby J referred.[24]But it is important that I identify the limits of my conclusions. The removal from unit to the segregation wing was not, in my view, by itself a breach of the Rules or the Code of Practice expressed in the Prison Orders. Had proper education, training and physical education facilities been provided, there would, in my view, have been no breach. The claimant's medical condition at the time was not such as to preclude punishment. It is plain that his case was considered by a medical officer before the punishment was awarded on both occasions: see Mr Styles at paragraph 16 of his first statement and paragraph 5 of his second statement. The medical officer had an opportunity to read all the records. He was entitled to conclude that the claimant was not in such a condition to preclude his being placed on the segregation unit, still less at any risk of self-harm at that time. There was accordingly no breach of the Prison Order 1700 at paragraphs 1110 and 11.11. ARTICLE 3 It is contended that the conditions in which the claimant was kept on the segregation unit amounted to an infringement of his rights enshrined in Article 3. Article 3 of the European Convention on Human Rights provides:
"Prohibition on Torture No-one shall be subjected to torture or inhuman or degrading treatment or punishment."
The principles to be applied in considering whether the treatment is of sufficient gravity to amount to a breach of Article 3 are by now so well-known as to deter yet further judicial repetition. The principles were yet again set out by Silber J in R (On the application of N) v Secretary of State for the Home Department [2003] EWCH 207 Admin. Particularly of importance are those principles at paragraph 81: (i) the prohibition is absolute; (ii) "ill-treatment" must attain a minimal level of severity, whether the treatment has attained that level depends on all the circumstances of the case such as the nature and context of the treatment, its duration, its physical and mental aspects and, in some circumstances, the sex, age and state of health of the victim; (iii) in determining whether the treatment is degrading within the meaning of Article 3, the court has to have regard to whether its objective is to humiliate and degrade the person concerned. But the absence of such intention does not rule out a violation of Article 3; (vii) deterioration of the mental health of a person is capable of constituting inhuman or degrading treatment; (viii) the test is becoming stricter; (ix) the kinds of ill-treatment falling within the scope of Article 3 are very serious. The Strasbourg case law refers to actual bodily injury or intense physical or mental suffering.[25]In a judgment delivered by the Court of Appeal during the hearing of this case Munjaz v Mersey Care National Health Service Trust and Secretary of State for Health [2003] EWCA Civ 1036 the Court of Appeal again referred to Keenan v United Kingdom [2001] 33 EHRR 38 in identifying those principles again. In those circumstances, it is unnecessary for me to repeat them, save to point out that yesterday Hale LJ in that case pointed out the distinction between consideration of the conditions as they apply to prisoners as opposed to compulsory patients who are mentally ill. At Paragraph 55 she says:
"The imprisonment of criminal offenders is an end in itself. The necessary ingredients of imprisonment provided that they meet the standards considered acceptable at the time are unlikely to amount to inhuman or degrading treatment or punishment under Article 3."
[26]There are of course cases in which those sentenced and detained in prison have been treated in a manner which infringes Article 3 and, to our shame, not just in other countries but in our own: see for example McGlinchey and Others v United Kingdom 29th April 2003 and Keenan v United Kingdom, to which I have already referred.[27]My attention was also drawn to cases such as Kalashnikov v Russia 15th July 2002 and Peers v Greece [2001] 33 EHRR 1192. But the facts of this case are miles away from the facts of any of those cases to which I have referred. I am prepared to accept that solitary confinement of a child (in other words someone under 18) could amount to a breach of Article 3 in circumstances where it would not in relation to an adult. But the facts of this case, and particularly the facilities afforded to this claimant within his cell -- the number of visits; the length of time which he was kept there, and its purpose preclude -- any finding or anything approaching a finding of a breach of Article 3. ARTICLE 8 Article 8: "Right to Respect for Private and Family Life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'[28]The principles in relation to Article 8 are set out by the European Court of Human Rights in Pretty v United Kingdom [2002] 35 EHRR 11 at paragraph 61: The concept of private life is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual's physical and social identity ... Article 8 also protects a right to personal development and the right to establish an develop relationships with other human beings and the outside world." At paragraph 65 the court said the very essence of the Convention is respect for human dignity and human freedom.[29]Further in Raininen v Finland [1997] 26 EHRR 563 at paragraph 63, the court acknowledged that conditions in detention which do not attain the level of severity required by Article 3 might constitute a breach of Article 8. All these principles were applied in the domestic context by the Court of Appeal yesterday in Munjaz at paragraphs 61 to 63. The breach in that case consisted not just of seclusion but the close and intrusive surveillance of the mentally ill person confined.[30]The question whether there was a breach of Article 8.1 turns on the extent to which this young claimant's physical and psychological integrity were in fact violated. In Human Rights Practice (November 2001) the authors point out that:
"The severity of the adverse effects of the individual's moral or physical integrity will determine whether the treatment is sufficiently serious to fall within the scope of Article 8."
For example in Costello Robert v United Kingdom 19 EHRR 112 which concerned corporal punishment at a private school, the court took the view, whilst not endorsing the beating of that unfortunate child, that the treatment complained of did not entail adverse effects for his physical or moral integrity sufficient to bring the case within the scope of the prohibition contained in Article 8. Similarly, in DG v Ireland [2002] 35 EHRR 1153 the placing of the young victim in handcuffs was not sufficient to constitute a breach of Article 8.[31]The complaints this claimant makes in his statement are based, as I have said, on facts, some of which I am not prepared to accept in the light of the evidence of Mr Styles. The conclusions that I draw might have been different had there been any evidence of an adverse effect upon this claimant as a result of his deprivation of those activities which I have identified. But the evidence from Mr Styles at paragraph 92 discloses no such adverse effect, nor is there any contemporary record of such an effect. Indeed, when he was due to come out of the unit for the second time, he protested and became abusive and uttered threats because he did not want to go back to a different unit: see the entry in his records for 13th February.[32]That I readily accept does not mean that he liked it in the segregation unit, and shows no more than that he did not wish to do other than go back to his previous unit. But certainly I find no evidence of the sort of effect that would be necessary to constitute a breach of Article 8.1.[33]I ought to emphasise that I am far from saying that in every case evidence of an effect is necessary from some independent source. The evidence of the conditions in which somebody is kept might be such that it would lend support to the evidence of an effect or even likely effect on the physical and psychological integrity of a young inmate. But not in this case. I am not prepared to identify the circumstances in which removal from unit of a young offender will amount to a breach of Article 8.1. To do so might inhibit the flexibility of application for Article 8, a flexibility necessary to promote and safeguard the effectiveness of Article 8. Further, it is important, even in the context of human rights, that the courts should exhibit a certain reluctance to intervene in setting standards of management of prisons and young offender institutions, when they are far less well equipped to demonstrate the humanity and expertise exhibited by staff in this particular young offender institution at Warren Hill, of which the Chief Inspector of Prisons wrote in her report:
"The level of care for young people in the establishment was very high and child protection procedures were a model for the rest of the juvenile estate,"
Later:
"There were many aspects of Warren Hill's regime that provided a model for other juvenile establishments."
She spoke of the overall relationship between staff and young prisoners being extremely good. That makes it all the more disappointing that the claimant should have persisted in allegations of a very serious charge under Article 3 of the European Convention on Human Rights. That seems a poor reward for the hard work demonstrated by the independent inspector in relation to staff at that particular institution.[34]I am not on the evidence prepared to find that the effect on this claimant was such that it amounted to a sufficient violation of his physical or psychological integrity as to amount to a breach of Article 8. I hope I may be permitted merely to utter this warning: there are clear dangers in placing young people in segregation units in relation to their rights enshrined in Article 8. THE THIRD ISSUE The allegation made in the claimant's skeleton argument is that the defendant failed to investigate or ensure that there was an effective investigation of the claimant's allegations that he was raped by three inmates of the young offender institution at Hunterscombe in breach of Article 3 of the Convention.[35]The facts giving rise to that allegation are that this claimant says that between October and November 2001, whilst at Hunterscombe, he was raped by three fellow inmates. He did not disclose that at the time for (whatever the truth about them) very understandable reasons, but did disclose it when he had gone to Warren Hill on 21st June of 2002. The allegation made in the claim form in these proceedings was as follows. What was said at paragraph 4 of the grounds under the heading "Facts" was that he had been raped in July and he had only disclosed this allegation on 21st June 2002 and "it is the subject of ongoing investigations by the police." The complaint was made at paragraph 40 that the claimant had breached its own policy in relation to grievances and investigations, which provides that it is a mandatory requirement that:
"... governors must establish arrangements with the local Area Child Protection Committee (ACPC) for dealing with incidents in which a young person has or may have suffered significant harm."
The ground goes on:
"No joint arrangement with the relevant local authority's Area Child Protection Committee has been established by the defendant and the action taken in response to the harm suffered by the claimant fell well below that required by PSO 4950."
[36]In fact, in acknowledging the claim the Treasury Solicitor wrote on 21st February 2003 setting out the way that the matter had been dealt with by Mr Moore, Warren Hill's Child Protection Co-ordinator. In summary, it was asserted that the allegation made in the claim form was wholly wrong and, for reasons I shall come to, that was plainly correct and has not been challenged in this case.[37]There was no response to that letter. The first time any suggestion that there was some fault in failing to carry out an investigation itself, or in failing to chivvy the police in relation to its investigation was in the skeleton argument drafted in this case. That was, in my judgment, far too late. If there was anything in it, which there was not, it should have been raised in the claim form so that the judge could properly consider it in granting permission. Had this matter properly been drawn to the attention of the judge considering permission, I have no doubt whatever that permission would have been refused.[38]That that is so is confirmed by the very detailed evidence given by Mr Moore of the immediate steps that were taken by the institution as soon as the complaint was made. It is a shame that any one has persisted in making any complaint in the light of the very full steps that were taken to protect this young man as soon as he made the allegation. At paragraphs 13 to 34 Mr Moore sets out in the greatest detail precisely what happened in relation to the protection afforded to this young man. It is unnecessary to identify in any great detail, save to say that the procedures that have to be put into place in relation to child protection when complaints such as this are made, were applied with meticulous attention to detail. Both the police and social services were involved, particularly so that social services could comply with their obligation under section 47 of the Childrens Act 1989. If I were to set out in detail all that was done, it would only go to confirm that not one scintilla of criticism can be raised against the institution in response to the complaint made by this young complainant.[39]What unfortunately does seem to have happened is that as time went by, the investigation by the police does not seem to have reached any fruition or conclusion. But I mention that with some hesitation because neither the Social Service Department nor the police have attended this court, and it would be quite unfair to level any criticism against them. It is obviously important that in relation to a serious allegation like this, involving both young people as alleged offenders and a young person as a victim, that the investigations by the police be carried out swiftly, as they should in every case. But precisely what has happened I am not in a position to say, nor would it be appropriate to do so since this is not the proper subject matter of any criticism, let alone any issue in this case.[40]Had this matter been properly expressed in the original papers, permission should have been refused. There is no such claim within the papers before me. No application has been made for an amendment of the claim. Had such an application been made, I would have refused it. The issue ought not to have been pressed.[41]Finally, I should refer to the relief in the light of my findings in relation to the first issue. A declaration has been sought that the detention in the segregation unit during the course of his sentence was contrary to the Young Offender Institution Rules 2000 and was unlawful. I should stress that no claim in damages flowing from that breach has been sought. There is, in my view, no point now in giving such a declaration. There has been a review and a change in the regime in the segregation unit in question. I have been told, and I accept, that both of the relevant orders under 4950 and 1700 are to be reconsidered.[42]There would have been a point in making a declaration had I found a breach either in relation to Articles 3 and 8. But I would like to stress at the end of this judgment the right of a claimant such as this to bring an action under section 7 of the Human Rights Act 1998, to which Munby J drew attention in the Howard League case. Such an action would give rise to the possibility of live evidence in relation to past events, such live evidence might lend force to the contentions of someone in the position of the claimant and afford an opportunity to cross-examine witnesses on behalf of the Home Department. This will provide a powerful incentive, whatever the result, that that Department should comply with its obligations in relation to young detainees under the 1999 Act.[43]MISS RICHARDS: My Lord, in light of my Lord's findings, I ask for an order that the application for judicial review be dismissed as no relief is being granted?[44]MR JUSTICE MOSES: You sort of won on it, can I not just say nothing? Can I not be vague about it? I mean it is sort of curious to dismiss it when, having raised it, he established the point. I mean all I have said is that there is no point in giving any relief. I am not sure where one stands then.[45]MISS RICHARDS: Your Lordship, I think has to.

MR JUSTICE MOSES: I have to say one way or the other, I have to come off the fence, do I?

[47]MISS RICHARDS: Bearing in mind that no relief has been----

MR JUSTICE MOSES: I could allow it but say no relief, could I not?

[49]MISS RICHARDS: Possibly.[50]MR JUSTICE MOSES: Anyway, I will hear what Mr Wise has to say, but that is what I propose to do, Mr Wise, is to allow your application.[51]MR WISE: Allow it to the extent set out in your Lordship's judgment.

MR JUSTICE MOSES: You won the first point.

[53]MR WISE: Any declaration that I sought is in your Lordship's judgment.

MR JUSTICE MOSES: It seems a bit harsh to say it is dismissed.

[55]MR WISE: Well, I clearly won on that point.[56]MR JUSTICE MOSES: Yes. Thank you very much. I propose just to say I allow the application but refuse any relief, or is that meaningless?[57]MISS RICHARDS: I was talking about a consistent approach.

MR JUSTICE MOSES: I am sure it is not, but does anybody care?

[59]MISS RICHARDS: It probably does not greatly matter, bearing in mind that no relief has been granted, my Lord.[60]MR JUSTICE MOSES: It seems a bit harsh to say it is dismissed. I mean they did bring the point and they won it. They have had something just as strong as a declaration in the words I have used in my judgment.[61]MISS RICHARDS: It is a matter for your Lordship.[62]MR JUSTICE MOSES: Thank you very much. I shall allow the application and refuse any relief.[63]MISS RICHARDS: My Lord, may I seek instructions on the question of costs?[64]MR WISE: My Lord, my client has a public funding certificate, may I have an order for detailed assessment?[65]MR JUSTICE MOSES: Yes. You are not asking for costs?[66]MR WISE: I am asking for costs, my Lord, yes.

MR JUSTICE MOSES: Very well, that is your first application.

[68]MR WISE: Well I anticipate the CSL funding was not controversial. I do seek my costs, my Lord, taking the matter head-on, clearly we have raised three issues. We won on one. I anticipate that my learned friend will be seeking a split costs order.

MR JUSTICE MOSES: Anyway, you are asking for your costs?

[70]MR WISE: We are asking for our costs.

MR JUSTICE MOSES: Shall I see what Miss Richards says about that?

[72]MISS RICHARDS: Could I enquire whether Mr Wise is asking for all his costs?[73]MR WISE: I am asking for all my costs.

MR JUSTICE MOSES: Can you do any better than no order as to costs?

[75]MISS RICHARDS: Well, my Lord, I was going to rise to my feet to ask for my costs, which an order can be made pursuant to section 11 of the Access to Justice Act because the claimant is CSL funded, but it gives the Home Office the opportunity to seek their costs from the Legal Services Commission from the cost judge.[76]My Lord, I seek my costs on essentially two reasons. Firstly, of the three issues the claimant has failed on two of them and the defendant has succeeded. My Lord, additionally to that, the claimant raised in the claim form a very generalised argument about child protection, which led to the defendant having to incur quite considerable costs in putting in all the material, like how the assault was dealt with and so and so forth. The claimant has never abandoned that. There was nothing new in the evidence. They never abandoned it until it was essentially implicitly abandoned in the skeleton argument. So, in addition to the two issues that the claimant lost on, there is a fourth issue effectively that the claimants at some late stage decided not to pursue it, and so for that reason too I would say we should get our costs.

MR JUSTICE MOSES: What sort of order would that be under section 11?

[78]MISS RICHARDS: It is what used to be a football pools order.

MR JUSTICE MOSES: Yes, but it now has a special wording, well it is no longer new.

[80]MISS RICHARDS: My Lord, insofar as issue 1 is concerned, at best my learned friend is entitled to an order for costs on that issue. In fact, in my submission, he should not even get that.

MR JUSTICE MOSES: Did you not concede it in that letter?

[82]MISS RICHARDS: Certainly, when the evidence was served it was made quite clear what the position was and that everything had been changed in light of it. The claimants have pressed on with what effectively was an academic claim, in respect of which he has been granted no relief, and judicial review ultimately is about the obtaining of relief. In my submission, the defendant should get his costs from the claimant certainly in relation to the majority of the case, and he certainly should not have to pay costs to the claimant in relation to issue 1 in view of the fact that the claimants pressed on with an academic point.

MR JUSTICE MOSES: Yes.

[84]MR WISE: My Lord, one of the difficulties that has bedevilled this case is the late service of evidence from the defendant. It is a very practical issue. I have here a schedule that has been prepared by my solicitors, I can pass it up to your Lordship in a moment. The evidence was first due from the defendant on 19th May. There was a number of extensions sought and we extended flexibility and reasonableness. But we did not actually receive the evidence until 16th June, after the case was listed. We then had to take instructions from the client. The first date that we were able to do that was 30th June, so you can see we are getting very close to the hearing. It was only when we got the evidence that we saw what had actually happened in all the background material, the evidence of Mr Style's statement and so forth. It was only at that point that we really got a clear picture of the background investigations and what had gone on and so forth. So instructions were taken from the client on 30th June. Then it was on 4th July, which I think was the following Monday, that statements were served and a skeleton argument and so forth. We are getting of course then very close to the hearing date. If there is any criticism due, it is because of the late service of the evidence.[85]MR JUSTICE MOSES: The point in relation to that, that led to a vast amount of work and evidence from Mr Moore for example, should never have been brought. There should have been something -- you knew nothing about it, all you had to do is write a letter and say what happened as a result of the rape allegation.[86]MR WISE: We did, my Lord, it is in the bundle.

MR JUSTICE MOSES: You got that letter in February, and yet you persisted in it.

[88]MR WISE: Does your Lordship have the letter.

MR JUSTICE MOSES: Yes.

[90]MR WISE: We had the letter before action on 14th February. The response to that is on 21st February.

MR JUSTICE MOSES: Yes, page 31 onwards.

[92]MR WISE: Certainly with respect to the rape allegation, it remains unclear what the position was.

MR JUSTICE MOSES: No, it does not, it is set out in full there.

[94]MR WISE: Well, your Lordships sees what we have in the middle of the page:
"Mrs Roberts undertook to liaise with the police and report back. The case review on 13th January. No further information available at the time."
In respect of that point it was entirely unclear.[95]MR JUSTICE MOSES: No, it was not. You could have rung up the police and said what is going on.[96]MR WISE: Well, your Lordship made that point.[97]MR JUSTICE MOSES: Exactly. No, the less you say about that the better. I think it was outrageous to go on with that.[98]MR WISE: But it was only until we received the late evidence that it was clear what the background picture was, and your Lordship has that point, and it was very late service of evidence----[99]MR JUSTICE MOSES: I expect they are exercising their humanity and skill in looking after trainees and not writing long affidavits in response to spurious claims. I mean I, as a taxpayer, resent the fact that time and money is spent answering these sort of things when they have other things to do.[100]MR WISE: That is with regard to that aspect of the case. Your Lordship found against me and I can only throw my hands up on that point. There is no point in pursuing that. The claim was well made in respect of the first issue, your Lordship has found with me on that and, indeed, if anything, has gone rather further on that point then the way it was originally drawn. Your Lordship has found breaches of a number of detailed provisions, as well as the Young Offender Institution Rules, which were the primary target of the claim. Your Lordship has also bracketed to those detailed findings the point made by Munby J in the earlier case, and of course that was always part of the claimant's case. That is most helpful and it provides, I am sure, a public service, and is a salutary lesson to the Prison Service to ensure that this sort of thing does not happen again. We have seen the policy has changed as a result of the application being brought. Your Lordship has also seen that policy----

MR JUSTICE MOSES: I am not prepared to assume that at all.

[102]MR WISE: I think my learned friend says so in her submission.[103]MR JUSTICE MOSES: Not at all, all they say is that it is happening. It probably was any way. Anyway, there we are.[104]MR WISE: No, she says there has been a policy change, my Lord, she specifically said that.[105]MR JUSTICE MOSES: Yes, but whether it is the result of your claim is another matter. It is probably as a result of the guidance given by Mr Harvey.[106]MR WISE: That guidance would have been issued as a result of the claim, my Lord. It was that that drew attention to the----

MR JUSTICE MOSES: No, you do not need to pursue it, it could have happened anyway.

[108]MR WISE: That is hypothetical, my Lord. We just cannot deal with that. We say that the matter was a properly brought claim, certainly in respect of that primary issue. We should be entitled to our costs in respect of that issue. The burden placed on the court, of course, is to decide what proportion would be appropriate in a cost order, bearing in mind the issues, the time spent in the case and so on and so forth; all the obvious discretionary points. Clearly, in order to make that first issue good, the background had to be set out in detail and so on and so forth. Your Lordship had to be taken to the relevant provisions that your Lordship found. This is not a case where there is three issues so each issue would take 33-and-a-third per cent of the time either of preparation or of the court and, in those circumstances, it would seem that 50 per cent or thereabouts would be a fair apportionment of costs. So I seek an order from your Lordship that the defendant pay 50 per cent of the claimant's costs.[109]MR JUSTICE MOSES: I am not prepared to make any order for costs. I can see why the issue under Article 8 should have been pursued, notwithstanding the concessions made, in other words I cannot blame the claimant for continuing in relation to that. But, had I done so, I would have ordered the claimant to pay the costs. I remain extremely disturbed that the question of the investigation should have ever continued, and Article 3 should never have been alleged; people should not just throw in Article 3 as a makeweight if they really mean Article 8. It is a very grave accusation to make against one human being that they have been guilty of an infringement, particularly those running these institutions, and people must be very careful about that. If I was a Governor, I do not suppose they would behave like that, but I would be very upset indeed. Anyway, I am not prepared to mark that in any way with costs. I just hope that people are a bit more careful about it in future, particularly where the really responsible valuable institution like the Howard League is involved or may be involved. But, having said that, I will just say no order as to costs.[110]MR WISE: Very well, my Lord.

Cited in 5 later judgments