Court/Judicial body: The High Court of Justice (Queen’s Bench Division)
Date: 11 January 2012
Citation:  EWHC 8 (Admin), Case no: CO/1372/2011 CRC
Provisions: Article 3: Best interests of the child Article 19: Protection from abuse and neglect Article 37: Torture and deprivation of liberty Article 39: Rehabilitative Care
Other international provisions: European Convention on Human Rights (ECHR), Articles 3, 6 and 8
Domestic provisions: Criminal Justice and Public Order Act 1994 Human Rights Act 1998 Secure Training Centre Rules 1998 (SI 1998/472) (STC Rules)
Background: Children’s Rights Alliance for England (CRAE) sought an order requiring the Secretary of State for Justice to provide information to children about potential claims they may have had for unlawful restraint in four Secure Training Centres (STCs) in the UK. The general purpose of an STC is to accommodate teenagers who have been sentenced to custody or remanded by a court. STCs are run subject to and in accordance with the STC Rules, which allow for physical restraint to be used in very narrow and extreme circumstances, most notably to prevent escape, injury or damage. The STC Rules do not permit the use of physical restraint for the purposes of ensuring ‘good order and discipline’ (GOAD). However, following two fatal incidents at STCs in 2004, a number of reports and inquiries drew attention to erroneous and ‘confused thinking’ regarding the basis for permissible physical intervention, with evidence that restraint techniques had been used to enforce GOAD on many hundreds, possibly thousands, of young persons until at least July 2008. Few, if any, of those subjected to the unlawful restraint appreciated at the time that it was unlawful, with statistics indicating that, although there existed a system for complaints and advice, the vast majority of restraint techniques employed for GOAD were not made the subject of a complaint.
Issue and resolution: Right to effective access to justice for children in detention. The issue advanced by CRAE was that the State had a positive obligation to seek out and inform the children about the potential claim they may have had for unlawful restraint during the period. The Court held that there was no positive obligation on the State to inform the victims that they may have been unlawfully restrained. The Court also considered that the complainant would not have had sufficient standing for a case based solely on the ECHR because s 7 of the Human Rights Act only allows proceedings to be brought against public authorities by victims of the unlawful acts in question.
Court reasoning: The Court gave its reasons as follows. Firstly, there is nothing under the ECHR which requires a positive obligation of this kind to be placed on the State. CRAE tried to rely on the fact that not knowing constituted a barrier to access to justice. The Court dismissed this argument saying that, by not positively informing the victims, the State was not impeding access to justice. Secondly, the Court was wary of extending any existing positive obligation, even in these narrow circumstances, as it would open the door for onerous obligations to potentially be placed on the State in the future. Lastly, the Court believed that there was a good chance that a court would extend the time limit for these victims to make a claim, thereby still providing them with a remedy.
Excerpt citing CRC and other relevant human rights 165. Those then are my conclusions on the Article 6 arguments. I will consider whether the UN Convention on the Rights of the Child 1989 (‘UNCRC’) makes a difference to the view to be taken of Article 6 when I deal with its implications under Articles 3 and 8 below (see, in particular, paragraphs 179-183). 169. Mr Hermer has drawn attention to a number of features of the UNCRC which, he submits, assist in affording the basis for concluding that a positive obligation on the part of the Defendant to disseminate information in the manner contended for arises under the ECHR as informed by the UN Convention. He draws attention to Article 3 of the UNCRC first which is in the following terms: [ Article 3] 170. Then he draws attention to Articles 19, 37 and 39 which are in the following terms: [ Article 19] [ Article 37] [ Article 39] 171. Mr Hermer also draws attention to certain of the General Comments made by the Committee on the Rights of the Child which are published as its interpretation of the content of human rights provisions. The first to which he referred was General Comment Nº 5 (2003) end ‘General measures of implementation of the Convention on the Rights of the Child’ and to paragraphs 24 and 25 in particular: [Paragraphs 24 and 25 of General Comment 5] 172. The next matter to which he referred is derived from General Comment Nº 8 (2006) end ‘The right of the child to protection from corporal punishment and other cruel or degrading forms of punishment’: [Paragraph 43 of General Comment 8] 173. Finally he referred to paragraph 89 of General Comment Nº 10 (2007) end ‘Children’s rights in juvenile justice’: [Paragraph 89 of General Comment 10] 175. All those features of what might be termed the “enhanced consideration” that must be given by the State to the interests of children, when taken against the background of what must have been breaches of Articles 3 and 8 of the ECHR as a result of what happened within the STCs during the relevant period, Mr Hermer submits, should give rise to the positive obligation on the part of the Defendant to inform former detainees of the potential implications of their treatment. Whilst there are subtleties of argument about when and how these factors should have been considered by the Defendant when responding to the Claimant’s invitation to take action (as to which see paragraph 210 below), the bottom line of the submission is that these considerations add up to an overwhelming need for the kind of action sought in the claim. He submits that the UNCRC and the comments made in relation to it add to the case under Article 6, and indeed the case under common law, that action of the kind sought is necessary to ensure effective access to justice. 179. Whilst Mr Strachan does not (or, at least, realistically could not) challenge the first of the propositions referred to in paragraph 177 above, he submits that a system was in place to prevent abuses and which enabled complaints to be made if they were sought to be made. He submits that a variety of mechanisms for children to obtain advice and support and to bring complaints and claims existed and that the provision of this system was a proportionate response to the need to provide such a system (including the enhanced need to do so because the potential victims were children). He suggests that there is evidence that complaints were made pursuant to this system and that, accordingly, it cannot be said to have been a wholly inadequate system notwithstanding the fact that, without doubt, it took several years for the full picture to emerge. So far as the investigative obligation is concerned, he submits that (a) the need will arise only when a victim of a credible breach of Article 3 asserts that there has been such a breach and (b) in any event that the obligation will ordinarily be met by the availability of criminal and civil proceedings. He submits that there is nothing in Kalyx that dictates the need for any such inquiry (and points, in particular, to what Elias LJ said at paragraph 112) and, of course, says that no inquiry is sought in the present application. Compensation is, of course, one aspect of redress and Mr Strachan argues that, since access to justice has not been barred by anything done by the State, the opportunity to obtain compensation still exists, subject to any limitation issue. This is also his effective answer to the suggestion that the UNCRC dictates the existence of a positive obligation on the part of the Defendant to inform former detainees of the position as part of the Article 6 requirement of securing a practical access to justice. 220. The most compelling persuasive authority, however, is the decision of Gillen J in In the Matter of An Application for Judicial Review by the Northern Ireland Commissioner for Children and Young People of Decisions Made by Peter Hain the Secretary of State and David Hanson the Minister of State  NIQB 115. In that case the Northern Ireland Commissioner for Children and Young People sought to challenge the legality of and to quash the decisions of the Secretary of State and the Minister of State to introduce a statutory provision that provided for a defence to a charge of assault of reasonable chastisement of a child. A major ground of challenge was that the proposed statutory provision breached Articles 3, 8 and 14 of the ECHR and the provisions of the UNCRC and was therefore unlawful. CRIN Comments: CRIN believes this decision is not in compliance with the CRC. Under Article 37(d) children are end to basic guarantees of access to legal assistance in challenging the legality of a deprivation of liberty. In its General Comment No 10 on juvenile justice, the Committee on the Rights of the Child emphasised that in all cases of deprivation of liberty children need to “know about and have easy access” (para. 89) to complaint mechanisms. The Court in this case took a heavily formalistic approach to assessing whether access to these mechanisms was impeded, failing to give due regard to the crucial fact that the misinterpretation and misrepresentation of the legality of the restraint measures by staff at all levels of STC administration created a substantive impediment to access to justice for the vulnerable children concerned. While the CRC does not generally dictate an obligation on States to positively invite victims of State-perpetrated rights violations to consider accessing justice, the specific circumstances of this case, involving particularly vulnerable children and violations of the absolute prohibition on inhuman/degrading treatment/punishment, generated an overwhelming need for such positive action. Link to Full Judgment: http://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Judgments/crae-sec-state-for-justice-others-judgment.pdf This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Language English Organisation: Child Rights International NetworkMonitoring body: High Court of JusticeScope: National
Date: Wednesday, January 11, 2012 – 15:00Legal item: European Convention for the Protection of Human Rights and Fundamental FreedomsThemes: Children in vulnerable situationsGeneral principlesJusticeIssues: Access to justiceChild friendly justiceChild offendersChildren in conflict with the lawInformation (access to)Juvenile justiceTorture and cruel, inhuman and degrading treatmentCRC Article: Article 3: Best interests of the child Article 19: Protection from abuse and neglect Article 37: Torture and deprivation of liberty Article 39: Rehabilitative care Case lawPromotion: Country latest resourcesCited CRCs: Article 3: Best interests of the child Article 19: Protection from abuse and neglect Article 37: Torture and deprivation of liberty Article 39: Rehabilitative care Countries United Kingdom