The Children's Rights Alliance for England v Secretary of State for Justice (includeds Ruling)

The statutory rules governing secure training centres control the use of physical restraint. Before the relevant amendment, restraint could not lawfully be used merely to secure good order and discipline. A distraction technique used as part of such restraint was likewise unlawful, although its legality in other circumstances depended on the particular facts and the requirements of the rules.

The common law right of access to justice prevents hindrance of access to the courts. It does not impose a general positive duty on the State to identify potential claimants and notify them of possible claims. The Convention does not require a domestic court to create such a novel obligation where Strasbourg authority provides no clear basis for it. A refusal to undertake a notification exercise was rationally open to the defendant.

The claimant, a children’s rights charity, sought judicial review of the Secretary of State’s refusal to identify and inform former secure training centre detainees who might have been subjected to unlawful restraint or painful distraction techniques. It contended that notification was required by the common law right of access to justice and by articles 3, 6 and 8 of the ECHR, and that refusal was irrational.

The claim followed evidence that restraint had been widely used in secure training centres to enforce good order and discipline, contrary to the Secure Training Centre Rules 1998. The claimant also relied on the vulnerability of the detainees, the State’s responsibility for the regime and the limited likelihood that affected children knew that the conduct might have been unlawful. The court also considered whether the claimant had standing to rely on Convention rights.

1. Statutory framework. Section 9 of the Criminal Justice and Public Order Act 1994 conferred a power to use reasonable force, but contracted-out secure training centres had to operate in accordance with the applicable rules. Rule 38 of the Secure Training Centre Rules 1998 permitted physical restraint only to prevent escape, injury, property damage or incitement to those acts, and only where no alternative was available. It did not authorise restraint merely to secure good order and discipline. The omission was deliberate and the widespread use of restraint for that purpose was unlawful.
2. Distraction techniques. A distraction technique used as part of restraint for good order and discipline was unlawful because it formed part of an unlawful restraint procedure. A technique used for a purpose within rule 38 could in principle be lawful, subject to the requirement in rule 37 that no unnecessary or excessive force be used and to the facts of the individual incident.
3. Access to justice. The common law protects unimpeded access to the courts and legal advice. The authorities relied on concerned actual hindrance, interference or inadequate opportunity to obtain advice. Failure proactively to encourage possible claimants to litigate was materially different. Existing complaints mechanisms, public information and the potential flexibility of limitation rules meant that the court was not required to create a novel disclosure remedy.
4. Convention rights. Articles 3 and 8 were engaged by unlawful restraint, and children’s vulnerability was an important consideration. However, the Strasbourg authorities did not establish a positive duty on the State to inspect records, identify potential victims and notify them of possible claims. Under the approach in R (Ullah) v Special Adjudicator and Regina (Al-Skeini) v Secretary of State for Defence, the domestic court should not enlarge Convention rights beyond the Strasbourg jurisprudence.
5. Rationality. The defendant had to consider whether something should be done in light of the vulnerability of the children. Nevertheless, the absence of a legal duty, data-protection and privacy concerns, the age of the records, the risk of unwanted disclosure and the practical circumstances supplied a rational basis for refusing the proposed exercise.
6. Standing and order. The claimant was not a victim for the purposes of section 7 of the Human Rights Act 1998 and could not rely on Convention rights under that provision. It did have sufficient common-law standing, so the merits were considered. The claim was dismissed. The claimant was ordered to pay £2,500 towards the defendant’s costs under the protected costs order, with no order as to the interested parties’ costs. Permission to appeal was refused, but the costs order was stayed subject to an application to the Court of Appeal.

• High Court (Administrative Court): permission was initially refused on the papers by Mitting J and granted on oral renewal by Collins J. Mr Justice Foskett dismissed the substantive judicial review claim under [2012] EWHC 8 (Admin).
• Permission to appeal: refused by Foskett J, although the claimant was given time to seek permission from the Court of Appeal.