T, R (on the application of) v Secretary of State for Justice & Anor

The claim for judicial review succeeded on the single ground that the detention of the claimant at Birmingham Magistrates' Court on 15 November 2011 breached section 31 of the Children and Young Persons Act 1933. Section 31 requires arrangements to prevent a young person detained at or awaiting attendance in court from associating with adult defendants; the court held that that obligation covers not only meaningful social interaction but also transitory contact and physical proximity that creates the risks the provision is designed to avoid. The court found that the available cell accommodation for young persons was out of use, that there was no evidence of required risk-assessments or alternative arrangements, and that the claimant — a vulnerable 13 year old with assessed severe intellectual impairment and autism — had transitory contact with adult defendants and could hear adults shouting in the cell area, such that the arrangements in place did not prevent association under section 31.

Background and parties

The claimant was born 1 December 1997 and, at the time of events, was aged 13. He had recognised special educational needs and expert evidence recorded severe impairment of intellectual functioning and diagnoses of autism and attention deficit hyperactivity disorder. The defendants were the Ministry of Justice and Birmingham Magistrates' Court; the escort and court detention functions at courts were carried out under contract by GEOAmey (a contractor).

Nature of the application and relief sought

• The claimant sought judicial review of his detention at Birmingham Magistrates' Court on 15 November 2011 after arrest for breach of bail, asserting unlawful detention in the cells on three grounds: (i) breach of section 31 Children and Young Persons Act 1933 (the separation/"association" requirement); (ii) breach of Article 8 ECHR (private life and best interests of the child); and (iii) breach of the public sector equality duty under section 149 Equality Act 2010. Damages were sought for the alleged unlawful detention.

Procedural posture

The claim was heard in the Divisional Court with permission to bring judicial review. The judgment is delivered at first instance by the Divisional Court.

Issues framed by the court

• What is the scope of the obligation in section 31 of the 1933 Act to prevent a young person "associating" with adult defendants detained at or awaiting attendance in court?
• What, if any, role do international instruments (for example the Beijing Rules and the United Nations Convention on the Rights of the Child) play in interpreting section 31?
• Whether Article 8 ECHR was engaged and if so whether there was an Article 8 breach.
• Whether the Ministry of Justice breached its duty under section 149 of the Equality Act 2010 to have due regard to the needs of children.

Court's reasoning

• International instruments: the court reviewed the Beijing Rules and the United Nations Convention on the Rights of the Child but held that those instruments could not be used to rewrite the domestic statutory duty in section 31. Treaties cannot themselves be directly incorporated into domestic law absent statutory implementation; international instruments were therefore not relied upon to expand section 31 beyond its statutory language and context.
• Meaning of "associate" in section 31: the court adopted a purposive construction in light of the statutory context and history. "Associating" was held not to be confined to meaningful social interaction or deliberate communication; it includes accompanying, attending, transitory contact and physical proximity where such contact gives rise to the moral and developmental risks the provision seeks to avoid. The statutory purpose was to minimise risk of contact with hardened criminals and prevent intimidation, influence or other harms to young persons while detained or awaiting court.
• Application to the facts: on 15 November 2011 the discrete young-person cell area at Birmingham was out of use for refurbishment. There was no evidence of the risk assessment required by the contractor SOPs, nor evidence of alternative arrangements having been considered for this particularly vulnerable 13 year old. The claimant spent about three hours in a cell opposite the custody desk with a glazed door, experienced transitory corridor contact with at least two adult defendants and could hear adults shouting. The Ministry of Justice failed to demonstrate that it had put in place arrangements that prevented association as required by section 31.
• Article 8: the court accepted Article 8 was engaged but concluded there was no separate Article 8 breach in respect of the claimant's placement in court cells because his detention in the cells followed a lawful decision by the police to detain him; detention in custody pending judicial determination is an unavoidable concomitant of arrest and lawful detention and did not give rise to a separate Article 8 claim on these facts.
• Equality duty: the court concluded that the Ministry of Justice had adopted contractual provisions, standard operating procedures and supervision arrangements which showed attention to the needs of young persons generally and that, on the wider record, the section 149 duty had been given due regard. The equality duty did not, therefore, found a separate ground of relief in this case.

Conclusion and remedy

The claim for judicial review succeeded on the section 31 ground only; the court found a breach of section 31 on 15 November 2011. The Article 8 and Equality Act grounds failed. The judgment notes lack of documentary evidence such as custody records and required risk assessments, which undermined the Ministry's position.

The claim for judicial review succeeds in part. The court held that the claimant's detention on 15 November 2011 at Birmingham Magistrates' Court breached section 31 of the Children and Young Persons Act 1933 because the arrangements in place did not prevent association with adult defendants; the Article 8 and Equality Act 2010 claims failed (Article 8: no separate breach as detention resulted from a lawful police decision; Equality Act: the Ministry had demonstrated systemic steps showing due regard).