The Children's Rights Alliance for England, R (on the application of) v The Secretary of State for Justice

The constitutional right of access to justice imposes on the State a duty not to place obstacles in the way of access to the courts. It does not ordinarily impose a positive duty to identify potential claimants or tell them that past State conduct was unlawful or actionable. A claimant must show more than that the State caused ignorance of a legal wrong. The evidence must establish an impediment to access, such as deliberate steps knowingly preventing exposure of the wrong. A refusal to conduct a proactive information exercise was not irrational where relevant material was already public and complaint and legal-advice routes existed. Articles 3, 6 and 8 of the ECHR did not create the claimed duty. The Ullah principle prevented domestic courts using the UNCRC to extend Convention rights beyond Strasbourg jurisprudence.

The appellant challenged the Secretary of State’s refusal to provide or facilitate information to children formerly detained in secure training centres. The information would have told them that restraint techniques used for good order and discipline had been unlawful and might support civil claims.

Foskett J dismissed the judicial review claim in the Administrative Court: [2012] EWHC Admin 8. The appeal raised three principal issues: whether the common law duty of access to justice required proactive notification; whether the refusal was irrational in the public-law sense; and whether the duty arose under Articles 3, 6 or 8 of the ECHR.

Appeal dismissed unanimously. Laws LJ gave the principal judgment. Sullivan LJ and Black LJ agreed with his reasons.

1. The accepted legal background was that, under the Criminal Justice and Public Order Act 1994 and the Secure Training Centre Rules 1998, physical restraint for good order and discipline was unlawful during the relevant period. A distraction technique used as part of such restraint was unlawful for the same reason. The earlier decision concerning the amendment rules was relevant to that conclusion.
2. The common law protects access to the courts as a constitutional right. Properly understood, the corresponding duty owed by the State is a duty not to impede access to justice. The authorities, including Raymond v Honey [1983] 1 AC 1, R (Witham) v Lord Chancellor [1998] QB 575, R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 and Golder v United Kingdom (1975) 1 EHRR 524, did not establish a positive duty to identify potential claimants or provide them with the legal elements of a claim.
3. The Secretary of State had caused the trainees’ ignorance through the operation of the regime and confused official thinking, but the evidence did not show that he knowingly willed their ignorance or took active steps to prevent exposure of concerns. The necessary impediment to access was therefore absent. The court also observed, obiter, that a private tortfeasor could not be subject to such a duty in private law.
4. The notice obligations recognised in R (Anufrijeva) v Secretary of State for the Home Department and Another [2004] 1 AC 604 and R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC Admin 1925 concerned notification of decisions or factual events, or time to obtain legal advice before an adverse measure took effect. They did not concern notification of the legal quality of past conduct.
5. The Wednesbury rationality challenge also failed. In light of information already in the public domain, available complaint and legal-advice mechanisms, and the possibility of extending limitation periods in appropriate cases, no reasonable Secretary of State could be said to have acted irrationally by declining the proposed dissemination exercise.
6. The ECHR did not require a different result. Article 6 protected procedural requirements supporting access to justice, but no Strasbourg authority established a duty to inspect records and contact potential victims to tell them that past conduct was unlawful. Positive information duties under Articles 2, 3 and 8 arose in different factual contexts, such as information about environmental or health risks. The claimed duty was not an Article 3 investigative duty. Under the Ullah principle, the court could not use the UNCRC to extend the ECHR beyond Strasbourg jurisprudence.

1. Court of Appeal (Civil Division): Appeal dismissed.
2. Administrative Court, High Court: Foskett J dismissed the judicial review claim: [2012] EWHC Admin 8.