TB, R (on the application of) v Secretary Of State For Home Department [2004] EWHC 1332 (Admin)

[2004] EWHC 1332 (Admin)Case No CO/1186/2004IN THE HIGH COURT OF JUSTICEADMINISTRATIVE COURTVenue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/06/2004
Before
THE HONOURABLE MR JUSTICE CHARLES
Between
THE QUEEN on the application of ‘TB (by his mother and litigation friend ‘LB’)ClaimantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Mr I. Wise (instructed by Harrison Bundey, Leeds) for ClaimantMiss J. Richards (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 7 May 2004
JudgmentThe Hon Mr Justice Charles:Introduction
[1]This is an application for judicial review by a child, TB, who is just 17 and who was 16 when the most relevant events occurred. He brings the proceedings by his mother and next friend.[2]TB, is charged with abduction and attempted murder. It is alleged that on 10 December 2003 he and his co-defendants kidnapped a female victim before shooting her in the arms and legs. TB was remanded in custody on 20 December 2003.[3]It is apparent from what I have said that the offences with which TB is charged arise out of a violent attack on a young woman who was subjected to a terrifying ordeal.[4]TB’s case was considered by the Head of Operations at the Directorate of the High Security Estate (Mr Phelan) and by the Deputy Director General of the Prison Service (Mr Atherton) on 12 February 2004. It was decided that TB was highly dangerous and should be considered as ‘provisional Category A’. This decision was based on the information then available to the Secretary of State and the nature and circumstances of the alleged offences and a conclusion therefrom that TB would present an extreme risk to the public and police if he was at large. The circumstances of the alleged offences, the use of firearms in a public place and the fact that there was no known motive for the attack on the young woman are all factors to which particular regard was paid in reaching the above conclusions.[5]This assessment of risk has not been challenged in these proceedings.[6]The challenges advanced are on different bases and include an assertion that the Defendant has acted in breach of his own policy as published and put in place by Prison Service Orders and related material, alleged breaches of convention rights and alleged failures by the relevant decision makers to take account of relevant matters.[7]Section 12 of the Prisons Act 1952 provides (insofar as material) as follows: “(1) A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison. (2) Prisoners shall be committed to such prisons as the Secretary of State may from time to time direct; and may by direction by the Secretary of State be removed during the term of their imprisonment from the prison in which they are confined to any other prison.” (See also s. 92 of the Powers of Criminal Courts (Sentencing) Act 2000 – cited in Part A of the Schedule hereto).[8]Consideration of the risk to the public in the event of a prisoner escaping and the likelihood of escape are factors in decisions about placement. The practice of assigning a prisoner to a security category has developed as part of the process of exercising the power conferred by s. 12 of the Prisons Act (and s. 92 of the Powers of Criminal Courts (Sentencing) Act).[9]The assessment of risk in the case of TB led to his placement at a prison where until very recently he was held on the medical wing and was not allowed to associate with either young offenders (offenders between the ages of 18 and 21) or adult prisoners. A factor in this decision was TB’s age. He was then 16.[10]As I understand it, there was one other child held in similar circumstances on the same medical wing. There was very limited association between TB and that child.[11]It follows that the circumstances in which TB was placed and held resulted in him having little or no association with others. Further it resulted in him spending the majority of his days alone in his cell and indeed having only short periods outside his cell and not having a number of the facilities referred to in the next paragraph.[12]Very shortly before the hearing there were changes in the placement of TB. These followed a process of assessment and his 17th birthday. A move of TB was discussed by the Youth Justice Board and the Category A Review Team on 4 May 2004. The outcome was that it was decided that TB should be moved from the medical wing of the prison in which he is held to the Young Offenders wing of that prison which accommodates largely 18 to 21 year olds, but has from time to time also housed 17 year olds. As a result TB will be held in a normal location, he will be able to access a normal and full regime including association with others and access to the gym, he will be in a normal cell with (amongst other things) access to a television, and he will be eligible to participate in the privileges and earned incentives scheme. This is a significant change from his position on the medical wing.[13]I was also informed, and accept, that the other child who was held on the medical wing has also been moved. This move followed his trial and an assessment of risk in the light of the verdict. I understand that he was not convicted of the most serious offence with which he was charged but was convicted of a lesser offence.[14]Having regard to these developments it was submitted on behalf of the Defendant that this claim was now academic and I should not proceed with it.[15]For the reasons I gave in an extempore judgment I concluded that I should continue to hear the discrete challenge that the Secretary of State had acted in breach of his policies which was based on(a) Prison Service Orders and related matters and(b) a citation from the judgment of Buxton LJ in R v Secretary of State for the Home Department ex parte Stafford[1998] 1 WLR 503 at 521 where he said: “…. There is a particular obligation on the Secretary of State consistently and transparently to apply whatever policy it is that he has adopted where decisions directly affecting the liberty of the subject are concerned.[16]To my mind this was a self-contained basis of challenge which was not ‘fact sensitive’ and which has, or potentially has, general application in respect of children. This is because it relies on what was asserted to be general policies of the Secretary of State and thus did not engage issues that are specific to this case in respect, for example, of arguments relating to proportionality and discretion.

The nature and extent of the issue I am deciding

[17]I emphasis that it is a very limited issue. It is whether the decision to classify TB as “provisional category A’ and his placement pursuant to that categorisation and assessment of risk in the medical wing of a prison for adults and young offenders capable of dealing with prisoners who have such a risk is outside the policy of the Secretary of State and thus unlawful.[18]The starting point of this self contained argument advanced by the Claimant is that the relevant policy is to be found in two Prison Service Orders, namely: i) Prison Service Order No. 0900; ‘Categorisation and allocation’ (PSO 0900) which was issued on 24 July 2000, and ii) Prison Service Order No. 4950; ‘Regimes for prisoners under 18 years old’ (PSO 4950) which was issued on 29 July 1999.[19]The status of Prison Service Orders was dealt with in R(P) v Home Secretary [2001] 1 WLR 2001, in particular, at 2014 paragraph 35, where the Master of the Rolls says: “The policy and its legal status 35. The way is now open for the Prison Service to prepare what in another context would be described as a practice direction, giving guidance to its staff on the way they should implement the new policies for MBUs. This it did through the medium of PSO 4801, which is entitled ‘the Management of Mother and Baby Units and the Application process’………Whilst we agree with the authors of a recent text book, ‘Livingstone and Owen, Prison Law’……….that Prison Service orders ‘have no legal status whatsoever’ in the sense that they do not have the status of a Statutory Instrument or even a Statutory Guidance, the Prison Service is unquestionably entitled to give policy guidance to its staff as to the way they should act on behalf of the service in performing the functions which the Service has a statutory duty or a statutory power to perform. These Prison Service orders may also be relevant in a disciplinary setting,[20]This presents the Claimant with a problem because he seeks to rely on the PSOs to define the policy which he asserts the Defendant is bound in law to follow. The Claimant deals with this problem by relying on the passage from the Stafford case cited above and asserting that: i) when read alone, or together with PSO 4950 (and further or alternatively in the light of the effect of PSO 4950 because it is said that categorisation and placement are inextricably linked), PSO 0900 puts in place a policy that a person under 18 cannot be categorised as “Category A” or as “Provisionally Category A”, (I shall refer to this as the alleged categorisation policy), and further or alternatively ii) PSO 4950 puts in place a policy that a person under 18 cannot be placed in the manner that TB was placed on the medical wing with the regime applied to him when so placed (I shall refer to this as the alleged placement policy).[21]The Claimant also argues that the PSOs put in place and show that the Secretary of State has put in place both alleged policies notwithstanding the assertions in the evidence put in on his behalf that this is not the case.[22]It follows that I need to consider whether the two PSOs and related material (and in particular the parts thereof relied on by the Claimant) put in place the alleged policies.[23]If as I have concluded is the case they do not put in place those policies that is the complete answer to the limited ground of challenge that I allowed the Claimant to proceed with.

The PSOs and related material and comment

[24]In Parts A and B of the Schedule hereto I set out extracts from the PSOs relied on by the Claimant and related material. I also make some comments.[25]I accept the point made on behalf of the Claimant that when reading the PSOs (and other documents issued by the Prison Service) one should remember that references to young offenders are to persons between 18 and 21, and references to juveniles are to persons under the age of 18. It is common ground that this is a recognised use of these terms within the Prison Service. I was not referred to any definitions of the terms.

The alleged categorisation policy

[26]The Claimant’s argument was that when PSO 0900 and the Security Manual (and in particular paragraphs 9.2, 9.3, 9.4 and 9.26 thereof) were read together the only classifications available for persons under 18 are restricted open or closed conditions. I do not agree.[27]In my view when PSO 0900 is read alone, or with the Security Manual, at best from the Claimant’s perspective the categorisation of persons under 18 as Category A, or provisional Category A, is not dealt with and therefore there is a gap relating to this categorisation. To my mind such a gap whether it was deliberate or accidental cannot found, or put in place, the policy alleged so as to prevent the Secretary of State in the exercise of his statutory discretion from reaching the conclusions referred to above relating to the risk posed by TB.[28]Further in my view: i) PSO 4950 cannot be construed or applied or have effect to introduce the alleged categorisation policy into the gap because:(a) it is not directed to categorisation, and(b) its relevance to, and potential effect on, categorisation is limited to the alleged placement policy on the basis that such policy would prevent, or effectively prevent, Category A categorisation because its application would prevent, or effectively prevent, a placement commensurate with that assessment of risk, or, in any event, TB’s placement on the medical wing of a prison for adults and young offenders, and ii) the exception in the fourth arrowed point of the passage from the National Security Framework cited in paragraph 12 of Part A of the Schedule hereto indicates that there is not a policy that persons under 18 are not to be categorised as Category A, or provisionally Category A.[29]Accordingly in my view the Claimant has failed to establish the alleged categorisation policy.

The alleged placement policy

[30]The Claimant argues that PSO 4950 applies to all under 18 year olds wherever (his emphases) they are placed in the prison estate. In making that submission he relied in particular on paragraph 1.2, and the mandatory requirements in the PSO. He also pointed out that the reference to section 53 of the Children and Young Persons Act shows that the PSO covers grave crimes.[31]On the discrete challenge I am dealing with the main arguments of the Secretary of State were that: i) PSO 4950 is directed to establishments in the prison estate at which the young offender and juvenile regimes are to be delivered and not to each and every under 18 year old and thus not to a juvenile held outside the juvenile estate, and ii) the service level agreement between the Youth Justice Board and the Prison Service makes it clear(a) that PSO 4950 is not intended or applied by those bodies as applying to juveniles who for individual reasons are held outside the juvenile estate, and thus(b) that the alleged placement policy does not exist.[32]In my view when read as a whole and in its overall context: i) PSO 4950 is, as the Secretary of State asserts, directed to regimes at establishments where its regimes are to be applied and not to regimes that are to be applied to young offenders and juveniles wherever they are held, and ii) PSO 4950 does not put in place a policy that all under 18 year olds must be placed in establishments or placements therein where the regimes set out in it are applied or substantially applied. It follows that in my judgment the Claimant cannot rely on PSO 4950 as putting in place a policy that its regimes are to be applied to all under 18 year olds wherever they are placed so as to render his placement on the medical wing of the prison where he was placed a breach of that policy.[33]Further in my view in identifying the policy of the Defendant the service level agreement between the Youth Justice Board and the Prison Service cannot be ignored as the Claimant asserts because it is a private agreement that post dates the introduction of the PSO. If the service level agreement was being relied on to amend a clear and express provision of the PSO I would accept that arguably it might not be effective for that purpose. But in my view the Claimant’s argument on construction (including what was described as its high or killer point namely paragraph 1.2) does not go nearly that far.[34]In my view the service level agreement is relevant to determine the present policy of the Secretary of State because it sets out the position of(a) the Youth Justice Board which has statutory functions in relation to the youth justice system exercisable concurrently with the Secretary of State concerning the placement of prisoners and responsibility for commissioning of secure accommodation for juveniles, and(b) one of its providers, the Prison Service. These two bodies are therefore directly concerned with the placement of under 18 year olds and the implementation of any policy relating thereto and thus their agreement shows that their understanding of such policy is that PSO 4950 will only apply to an establishment outside the juvenile estate if that is expressly provided. In my view this is a compelling indication that the Secretary of State does not have the alleged placement policy.[35]Further I accept the evidence put in on behalf of the Defendant that his part of the service agreement was based on an express recognition by the parties to it that it was not possible to hold prisoners in the adult male estate to the standards set by PSO 4950. It seems to me that this situation would have been recognised at the time that PSO 4950 was introduced and that it is part of the context in which it should be construed. This view supports the conclusion that it is directed to establishments.[36]Accordingly in my view the Claimant has failed to establish the alleged placement policy.

Conclusion

[37]The limited basis of challenge based on an alleged breach of the policy of the Secretary of State fails.

Tailpiece

[38]The oral argument demonstrated there was some artificiality in isolating the challenge based on the alleged breach of his policy by the Secretary of State. In particular I acknowledge that the terms of PSO 4950, and thus the regimes set by it, would have been relied on by the Claimant in respect of the challenges based on convention rights and the failure of the Defendant to take relevant factors into account when placing him on the medical wing (on the basis of the regimes that were applied) in contrast, for example, to placing him on the young offenders’ wing or elsewhere. It was in the context of these argument that I was referred to R(BP) v SSHD [2003] EWHC 1963 (in particular paragraphs 23 and 24).[39]These arguments were disputed and fact sensitive as they focused on the actual decisions taken in respect of TB as opposed to the assertion that those decisions involved a breach of the general policies of the Secretary of State. Further, (but subject in the case of the arguments relating to convention rights, to the outcome of a reference to the ombudsman) in my view they were academic.[40]This judgment does not therefore deal with such arguments, or indeed a challenge to the policies of the Secretary of State as they affected the Claimant and it is limited to my rejection of the argument that in categorising and placing the Claimant the Defendant acted in breach of his own policies. SCHEDULE PART A PSO 0900 and related matters

SCHEDULE

[1]Chapter 3 is headed ‘Male Young Offenders’. The first key point set out therein is as follows:
“These orders set out the procedures and documentation for the classification and allocation of male Young Offenders, other than those for whom responsibility lies with Headquarters. They do not apply to those in Category A; those classified Restricted Status; those serving a life sentence or those sentenced to HMP.”
[2]Chapter 3.1 defines security categories including Category A, Restricted Status and Closed Conditions.[3]Category A is defined as follows:
“Prisoners whose escape would be highly dangerous to the public, or the police, or the security of the State, no matter how unlikely that escape might be and for whom the aim must be to make escape impossible.”
Restricted Status is defined as follows:
“Offenders sentenced to detention in a Young Offenders Institution whose escape would present a serious risk to the public and who are required to be held in designated secure accommodation.”
Closed conditions is defined as follows:
“Young Offenders for whom the very highest conditions of security are not necessary but who present too high a risk for open conditions or cannot be trusted in open conditions”
[4]Chapters 3.2, 3.3 and 3.4 provide (inter alia) as follows:
“3.2 The principles of categorisation 3.2.1 Young Offenders must be categorised objectively according to the likelihood that they will abscond and the risks that they would pose should they do so ……… 3.2.2 Factors such as the ability to mix with other prisoners, educational training needs etc, must not be taken into account at this stage. They are for consideration during allocation. A Young Offender must be assigned to the correct security category. The allocation process may immediately follow, but will be distinct from the security categorisation. 3.2.3 Every Young Offender must be placed in the lowest security category consistent with the needs of security. 3.2.4 …….. 3.2.5 …….. 3.3 Responsibility for the process of categorisation. 3.3.1 Arrangements for recommending Young Offenders for Category A status are detailed in Chapter 9 of the Security Manual and are not dealt with here. 3.3.2 Arrangements for recommending Young Offenders for Restricted Status are detailed in Chapter 9 of the Security Manual and are not dealt with here. 3.3.3 …….. 3.3.4 The initial categorisation and allocation of all male juveniles and male Young Offenders, plus the allocation of those Young Offenders downgraded from Category A after conviction, must be carried out by the OCA Units of Young Offenders Institutions, using the guidance contained in these orders and ICA 2 documentation. Procedures must be completed by staff specially trained and able to competently fulfil the OCA role. 3.4 The process of categorisation for unsentenced Young Offenders. 3.4.1 All Young Offenders on remand awaiting trial or convicted and awaiting sentence, other than those provisionally categorised A, are to be placed in Category U (U unclassified). 3.4.2 Young offenders must remain in Category U until they have been given a definitive category after which they may be allocated.”
[5]Chapter 4 is very short and is entitled ‘Allocation of juveniles’. It is in the following terms:
“4.1 Initial allocation procedures 4.1.1 The Youth Justice Board has prime responsibility for the allocation of juveniles sentenced to Detention Training Order (DTO). Those whom it is determined will serve their DTO in a Prison Service establishment will invariably be allocated initially to a closed Young Offender Institution. 4.2 Subsequent allocation 4.2.1 Any subsequent transfer to an open establishment must be assessed in line with the process of risk classification set out in ICA 2 (for male juveniles) and ICA 3 (for female juveniles).”
[6]Chapter 5 is headed ‘Procedures for male and female s. 53 juveniles and young offenders’. It provides (inter alia) as follows:
“5.1 General 5.1.1 Juveniles (aged between 15 and 17 years of age), sentenced under s.53 of the Children and Young Persons Act 1933 may be allocated to YOI, local authority Child Care Establishment or Glenthorne Youth Training Centre run by the Department of Health. Those allocated to local authority care are in most cases transferred to a YOI at the age of 18 years. Allocation decisions are made on a case-by-case basis by the Section 53 Unit at Abell House [the headquarters of the Prison Service]. In some cases the Section 53 offender will be allocated to the catchment YOI direct from court without prior knowledge of the Section 53 Unit. 5.1.2 ………. 5.1.3 ………. 5.1.4 In cases where a juvenile offender is allocated direct from court and the OCA recommends the juvenile be allocated to a Local Authority Secure Unit, the completed ICA2 or 3 forms plus all relevant background reports must be sent to Section 53 Caseworking Unit in Room 312D, Abell House. 5.3 Procedures for HMP and Indeterminate Sentences under Section 53 (male and female) 5.3.1 Allocation – Juveniles sentenced in detention during Her Majesty’s Pleasure or Detention for Life or generally allocated by the Life Section in Abell House…………. However, there are a small number of very young juveniles (usually under the age of 16) who have been sentenced to detention during Her Majesty’s Pleasure or for life where the responsibility for their allocation rests with the Section 53 Caseworking Section in Abell House. This section will generally have been given prior warning of their court appearances and the detainees would, in most cases, have already been held in a secure unit on remand.”
[7]Section 53 of the Children and Young Persons act 1933 has now been repealed and for present purposes replaced by ss 91 and 92 of the Powers of Criminal Courts (Sentencing) Act 2000. Section 91 applies to offenders under the age of 18 who are convicted of certain serious offences and gives the court power to sentence the young offender to be detained for such period not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 18 or over as may be specified in the sentence. Section 92 provides (inter alia) as follows:
“92(1) A person sentenced to be detained under s.

(b) as the Secretary of State may arrange with any person”

[8]Chapter 9 of the Security Manual is headed ‘Categorisation, recategorisation and allocation.’ It provides (inter alia) as follows:
“Purpose 9.1 By assessing the risk that prisoners present of escaping (or upon escape) it is possible to place them in accommodation with an appropriate level of security Application and definitions 9.2 There are four security categories; A, B, C & D with A for the prisoners who offer the greatest threat should they escape. Convicted male adult prisoners can be placed in any of the four categories. Unconvicted adult male prisoners can be placed in Category A but, if they are not, they are considered uncategorized and are treated as if they were in Category B. 9.3 Women prisoners can be placed in Category A, if they meet the criteria, otherwise they are classified for either open, semi-open or closed conditions. 9.4 Young prisoners can be made Restricted Status otherwise they are classified for either open or closed conditions. Women and young offenders. 9.26 If not placed in Category A or Restricted Status, these prisoners are allocated to open prisons if they can be trusted not to try to escape and otherwise to closed prisons. See guidance in CI 37/ 1988, 38/1992, IG16/93 (young offenders), and CI 2/1991 (women).”

Application and definitions

[9]I was not specifically referred to any other parts of the Security Manual. I commented during the hearing, and was not contradicted, that it would seem that contrary to paragraph 3.3.1 of PSO 0900 that the arrangements for recommending young offenders for category A are not detailed in Chapter 9 of the Security Manual. However in my view paragraphs 3.3.4 and 3.4.1 indicate of PSO 0900 that young offenders can be categorised as Category A.[10]In any event the evidence of the Defendant through Mr Atherton, the Deputy Director General of HMP is that the Security Manual has been replaced by the National Security Framework. In paragraph 5 of his affidavit he said:
“The National Security Framework replaces the Security Manual. Between 1 March and 31 July 2003 it was piloted in a representative cross-section of prisons. It is currently being rolled out across the prison estate. It reflects much of the Security Manual but it presents the information in a manner that enables prisons to apply security procedures in the way most suited to their individual needs and resources. There [sic] been no real change regards Category A prisoners. The only change envisaged is the extension of the term ‘restricted status’ (see paragraphs 43 /45 below.)”
[11]It seemed to me and to the Claimant’s advisers that this paragraph was indicating that the National Security Framework was not yet fully in place and had not yet fully replaced the Security Manual. However it was explained by counsel for the Secretary of State on instructions, and I accept, that the position is that the National Security Framework has replaced the Security Manual and the reference to the National Security Framework being rolled out across the Prison Estate is a reference to its implementation in establishments across that estate where, for example, an establishment has an option to take one or more courses of action under the National Security Framework in a way most suited to its individual needs. In any event it was explained by counsel for the Secretary of State, and I accept, that for present purposes the National Security Framework has replaced the Security Manual.[12]The National Security Framework is an intranet only document which is accessed through the home page on the intranet under the heading ‘Categorisation and Assessment.’ It contains (inter alia) the following:
“Purpose To ensure that each prisoner is held in conditions of safety and security in line with the level of risk posed in terms of: escape or abscond; to the public in the event of an escape or abscond; to the state; to himself/herself; to others within the prison or from other prisoners. Outcome Prisoners are assessed on reception and induction and are accommodated in accordance with the results of the following risk assessments ---------- Prisoners are risk assessed within prescribed timescales to determine their security category using the appropriate forms.  Unconvicted and convicted unsentenced adult male prisoners are held in Category U (unclassified) status unless otherwise assessed  Adult male prisoners are categorised A, B, C or D  Young adult male prisoners are categorised A, Restricted Status, closed or open  Juveniles are categorised and allocated by the Youth Justice Board Teams, except when category A / Restricted status applies.”
Outcome  Unconvicted and convicted unsentenced adult male prisoners are held in Category U (unclassified) status unless otherwise assessed  Adult male prisoners are categorised A, B, C or D  Young adult male prisoners are categorised A, Restricted Status, closed or open  Juveniles are categorised and allocated by the Youth Justice Board Teams, except when category A / Restricted status applies.”

Outcome

[13]The Youth Justice Board for England and Wales Order 2000 (SI 2000 No. 1160) provides in paragraph 4 thereof that the functions conferred on the Secretary of State by s. 53 of the Children and Young Persons Act 1933 (punishment of certain grave crimes) and s. 12(2) of the Prison Act 1952 (place of confinement of prisoners) shall, so far as exercisable in relation to the youth justice system, be exercisable by the Youth Justice Board for England and Wales concurrently with the Secretary of State (see paragraph 4(1) and (2)(a) and (b).[14]Finally I mention that Mr Atherton also asserted in his statement that amongst the categorisations used by the Prison Service is “provisional Category A” for un-convicted adult and young prisoners if they present a Category A type risk. PART B PSO 4950 and related matters

PART B

[1]PSO 4950 is entitled Regimes for Prisoners Under 18 Years Old and in its foreword it is stated that this PSO encapsulates the new approach the Prison Service is to take in its custody and care of under 18 year olds. Chapter 1 is entitled ‘Introduction’ and provides (inter alia) as follows:
“1.1 …….s.37 of the Crime and Disorder Act establishes the principal aim of the youth justice system as being to: ‘prevent offending by children and young people’ All agencies working within the youth justice system must have due regard to this aim. This Prison Service Order sets out how the Prison Service will achieve that aim. 1.2 The PSO has been informed by the criticisms made by Sir David Ramsbotham in ………. The PSO principally defines the regime for young offenders who have been sentenced to a detention and training order (DTO). However the regimes are in many respects- in their emphasis upon the importance of the safeguarding [sic] the individual’s welfare and in the importance of distinguishing the needs of the under 18 year old – appropriate for unconvicted and convicted unsentenced under 18 year olds and for those sentenced under Section 53 of the Children and Young Persons Act 1933. While section 5 does make distinct provision for the unsentenced, all elements of the regime are applicable to them provided that: (i)` their legal status is duly recognised; (ii) the regime activities meet their needs, abilities and aptitudes. 1.3 ……… 1.4 ……… 1.5 It is important at the outset to make clear that the regimes for under 18 year olds are different because under 18 year olds are, as adolescents, different. In order for the regimes to be appropriate to the needs, abilities and aptitudes of the individual and focused upon preventing offending, they must take into account the characteristics of adolescent behaviour. (i) the importance of peers and peer pressure on behaviour: (ii) their impulsiveness and inclination not to think ahead but to act to gratify immediate needs; (iii) emotional immaturity even when cloaked in physical maturity; (iv) their capacity for being cruel to one another – hence the importance both of the staff’s and peers role modelling and promoting good behaviour and of clearly defining and maintaining the boundaries of bad behaviour; (v) the prevalence of impoverished upbringing in their backgrounds and a history of low achievement; (vi) their potential to mature and grow out of crime 1.6 Underpinning the entire PSO is the belief that custody cannot be just about containment. However, if it is to have a positive influence we must provide regimes which recognise that (i) adolescents do change, (ii) that adults matter to adolescents and (iii) that adolescents need care and control.” ‘prevent offending by children and young people’ All agencies working within the youth justice system must have due regard to this aim. This Prison Service Order sets out how the Prison Service will achieve that aim. (i)` their legal status is duly recognised; (ii) the regime activities meet their needs, abilities and aptitudes. (i) the importance of peers and peer pressure on behaviour: (ii) their impulsiveness and inclination not to think ahead but to act to gratify immediate needs; (iii) emotional immaturity even when cloaked in physical maturity; (iv) their capacity for being cruel to one another – hence the importance both of the staff’s and peers role modelling and promoting good behaviour and of clearly defining and maintaining the boundaries of bad behaviour; (v) the prevalence of impoverished upbringing in their backgrounds and a history of low achievement; (vi) their potential to mature and grow out of crime (i) adolescents do change, (ii) that adults matter to adolescents and (iii) that adolescents need care and control.”
[2]Chapter 5 is headed ‘Providing for the Unsentenced’ and it contains (inter alia) the following:
“5.1 OBJECTIVE: To ensure that the legal status of the unconvicted and convicted but unsentenced young person is fully respected, and that regime provision meets their needs arising from their particular circumstances. 5.2 Mandatory requirements: (i) Governors must provide bail information services to enable the courts to determine whether custody pending committal, trial or sentence is appropriate. (ii) Governors must provide help to enable the unconvicted to preserve their accommodation and employment. (iii) Governors must make arrangements which enable the unsentenced to contact their family, friends and professional advisers and which take account of their particular circumstances. (iv) Governors must provide the opportunity and encourage the unconvicted to participate in purposeful regime activities. Those under school leaving age must be provided with a minimum of 15 hours education per week. (v) Governors must ensure that the unsentenced and sentenced young people are accommodated separately in accordance with Prison Service policy” (i) Governors must provide bail information services to enable the courts to determine whether custody pending committal, trial or sentence is appropriate. (ii) Governors must provide help to enable the unconvicted to preserve their accommodation and employment. (iii) Governors must make arrangements which enable the unsentenced to contact their family, friends and professional advisers and which take account of their particular circumstances. (iv) Governors must provide the opportunity and encourage the unconvicted to participate in purposeful regime activities. Those under school leaving age must be provided with a minimum of 15 hours education per week. (v) Governors must ensure that the unsentenced and sentenced young people are accommodated separately in accordance with Prison Service policy”
[3]Chapter 7 is entitled ‘Maintaining a safe and secure environment’ and provides (inter alia) as follows:
“7.2 The full, purposeful and active day 7.2.1 OBJECTIVE: 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: (i) The daily routine must provide: a. at least 10 hours out of cell time, rising to 14 hours as resources allow; b. 6 hours purposeful activity; c. ensure a minimum of four and a half and a maximum of five and a half hours between breakfast and lunch, and between lunch and tea and no more than fourteen hours between tea and breakfast the next day. (ii) Each young person’s attendance at training activities (see Section 8) and access to recreational and other facilities must be timetabled to ensure: a. a balance between the sedentary and active and between individual and group activities is maintained within the day and over the course of the week and during the duration of their period in custody; and that, b. periods of activity are of optimal length taking into account the nature of the activity and the tendency for this age group to benefit most from shorter varied sessions. (iii) The establishment’s programme of activities and routines must be well-integrated and minimise the disruptions which can be caused by scheduling different activities at the same time without providing suitable alternatives for which there are incentives to attend. (iv) The establishment must offer opportunities for each young person to develop socially and develop interests by providing a range of recreational opportunities including association, suitable for the age group which are appropriately led, supervised and structured. (v) Time within the day must be provided for each young person to attend to personal hygiene and to contribute to the maintenance of high standards of cleanliness and orderliness in their cell and surrounding area. Cleaning work must be taken outside the 30 hours purposeful activity each week, unless it forms a very small and meaningful part of a post of responsibility which has clearly defined performance standards and is accredited.” (i) The daily routine must provide: a. at least 10 hours out of cell time, rising to 14 hours as resources allow; b. 6 hours purposeful activity; c. ensure a minimum of four and a half and a maximum of five and a half hours between breakfast and lunch, and between lunch and tea and no more than fourteen hours between tea and breakfast the next day. (ii) Each young person’s attendance at training activities (see Section 8) and access to recreational and other facilities must be timetabled to ensure: a. a balance between the sedentary and active and between individual and group activities is maintained within the day and over the course of the week and during the duration of their period in custody; and that, b. periods of activity are of optimal length taking into account the nature of the activity and the tendency for this age group to benefit most from shorter varied sessions. (iii) The establishment’s programme of activities and routines must be well-integrated and minimise the disruptions which can be caused by scheduling different activities at the same time without providing suitable alternatives for which there are incentives to attend. (iv) The establishment must offer opportunities for each young person to develop socially and develop interests by providing a range of recreational opportunities including association, suitable for the age group which are appropriately led, supervised and structured. (v) Time within the day must be provided for each young person to attend to personal hygiene and to contribute to the maintenance of high standards of cleanliness and orderliness in their cell and surrounding area. Cleaning work must be taken outside the 30 hours purposeful activity each week, unless it forms a very small and meaningful part of a post of responsibility which has clearly defined performance standards and is accredited.”
[4]Chapter 8 is headed ‘Preventing re-offending’ and provides (inter alia) as follows:
“8.1 PURPOSE AND APPROACH 8.1.1 Objective: To provide a range of activities, including education, training courses, work, physical education, and offending behaviour programmes, which will help each individual’s personal development by tackling the causes of their offending behaviour and the risks of them re-offending. 8.1.2 Mandatory Requirements: (i) Each young person must spend on average at least 30 hours per week engaged in purposeful activity. (ii) There must be at least 10 hours unlock each day, rising to 14 hours as resources allow, which will include 6 hours of education, training, or work activity. (iii) Each young person must have an induction of at least one week which must comprise assessments (if not already completed) to identify individual need and criminogenic factors (see section 8.2.2) and an introduction to the culture and routines of the establishment. (iv) Programmes run in education, vocational training, physical education and offending behaviour programmes must be formally accredited or approved by an Area manager or raining services. (v) All regime activities must help foster personal responsibility and skills in establishing and developing appropriate relationships with colleagues and staff. (vi) Where crimes are racially motivated, or contain sexist elements, those features of the offending behaviour must be specifically challenged. 8.2 ……….. 8.3 EDUCATION 8.3.1 Objective: To deliver an education programme which identifies the needs of individuals (and provides every young person involved in its activities with an individual timetable) and comprises nationally accredited courses which help prevent further offending by preparing each individual for a return to education and/or training or employment on release. 8.3.2 Mandatory Requirements: (i) The timetable of education and training provision must be structured and delivered in multiples of one hour. The length of each period must be suitable tom the nature of the subject and the ability and aptitude of the class to benefit from it. (ii) Every young person’s education and employment needs, ability and potential must be formally assessed and recorded within two weeks of arrival in custody as part of their induction. (iii) - (ix) …… 8.3.3 Explanatory note: (i) Where Governors believe that courses other than those specifically mentioned may be more appropriate to local circumstances then approval should be sought from their Educational Adviser.” (i) Each young person must spend on average at least 30 hours per week engaged in purposeful activity. (ii) There must be at least 10 hours unlock each day, rising to 14 hours as resources allow, which will include 6 hours of education, training, or work activity. (iii) Each young person must have an induction of at least one week which must comprise assessments (if not already completed) to identify individual need and criminogenic factors (see section 8.2.2) and an introduction to the culture and routines of the establishment. (iv) Programmes run in education, vocational training, physical education and offending behaviour programmes must be formally accredited or approved by an Area manager or raining services. (v) All regime activities must help foster personal responsibility and skills in establishing and developing appropriate relationships with colleagues and staff. (vi) Where crimes are racially motivated, or contain sexist elements, those features of the offending behaviour must be specifically challenged. 8.2 ……….. 8.3 EDUCATION 8.3.1 Objective: To deliver an education programme which identifies the needs of individuals (and provides every young person involved in its activities with an individual timetable) and comprises nationally accredited courses which help prevent further offending by preparing each individual for a return to education and/or training or employment on release. 8.3.2 Mandatory Requirements: (i) The timetable of education and training provision must be structured and delivered in multiples of one hour. The length of each period must be suitable tom the nature of the subject and the ability and aptitude of the class to benefit from it. (ii) Every young person’s education and employment needs, ability and potential must be formally assessed and recorded within two weeks of arrival in custody as part of their induction. (iii) - (ix) …… 8.3.3 Explanatory note: (i) Where Governors believe that courses other than those specifically mentioned may be more appropriate to local circumstances then approval should be sought from their Educational Adviser.”
[5]A Mr Harvey who is a civil servant on temporary promotion to the Prison Service provided a further witness statement on behalf of the Secretary of State.[6]He explains that PSO 4950 was issued in July 1999 in advance of the introduction of the Detention and Training order (‘DTO’) and the setting up of the Prison Service Juvenile Estate. He also explains that at the same time, the Youth Justice Board took on statutory responsibility for the commissioning and purchasing of all secure accommodation for juveniles and that the Prison Service became and remains the Youth Justice Board’s largest provider.[7]The relationship between the Prison Service and the Youth Justice Board is that of a strategic partnership and a 5 year partnership agreement between the new bodies is underpinned by an annual service level agreement (‘SLA’).[8]Mr Harvey exhibits extracts from the SLA. Schedule 1 is entitled ‘Scope of Agreement’ and makes it clear that it covers “all young men and women under the age of 18 held within the Prison Service Estate in the establishments listed in Schedule 2”. Schedule 2 contains a list of establishments and in paragraph 2 thereof provides as follows:
“2. Juveniles held outside the designated estate 2.1 Juveniles held outside the juvenile estate are covered in Schedule 7 section 5.”
[9]This reflects paragraph 3 of Schedule 1 to the SLA which provides that:
“3. This agreement, with the exception of Schedules 2 and 7, does not cover those young men and women who, for individual reasons, are held within the adult male estate. Such arrangements as may be made for such cases are set out in Schedule 7.”
[10]Schedule 7 is entitled ‘Placement Protocol’ and paragraph 1.7 thereof provides as follows:
“1.7 There may also be circumstances when young people need to be placed outside the juvenile estate. These circumstances are set out in Section 5”
[11]Section 5 provides as follows: “5. Juveniles placed outside the juvenile estate.5.1 There are occasions when it may be appropriate or necessary for a juvenile to be placed in Prison Service accommodation outside the juvenile estate. This will normally be only in one of the following circumstances:  closeness to court for court appearances  exceptional security considerations, including restricted status juveniles  ………  other exceptional circumstances which must be agreed on a case by case basis by both the Youth Justice Board Head of Placements and the Prison Service. Standards5.2 Any establishment outside the juvenile estate holding juveniles must conform to existing Prison Service standards, but PSO 4950 will not apply, unless otherwise stated.5.3 Governors of establishments outside the juvenile estate holding juveniles should exercise due diligence when selecting staff to manage juveniles. This includes security vetting, and as far as possible, vetting against the principles contained in the Department of Health’s ‘Choosing with Care’ and the 1996 Code of Practice.5.4 Establishments outside the juvenile estate holding juveniles are required to implement agreed arrangements regarding documentation on juveniles received into reception, in particular ASSET forms, T1V forms and placement authorisation forms.”  closeness to court for court appearances  exceptional security considerations, including restricted status juveniles  ………  other exceptional circumstances which must be agreed on a case by case basis by both the Youth Justice Board Head of Placements and the Prison Service. Standards[12]Mr Harvey goes on to make the following assertions:
“The only establishment outside the juvenile estate which currently works towards delivering the standards as set out in the PSO is HMP Holloway although the Youth Justice Board and HM Prison Service recognise that that establishment will not be able to comply fully with the standards, nor is it funded to do so. This part of the SLA was inserted specifically because both HM Prison Service and the Youth Justice Board recognise that it is not possible to hold prisoners in the adult male estate to the standards set out in PSO 4950. These prisons will not hold many juveniles at any one time and for much of the time will not hold any juveniles. In these circumstances, they simply do not have the resources or the expertise to comply with PSO 4950. It is not the policy of the Prison Service that juveniles who are held for individual reasons in the adult prison estate will receive the regime identified in PSO 4950. Nor, as the SLA makes clear, is that a requirement of the Youth Justice Board.”