The court was asked as to what methods of physical restraint were proper in institutions accommodating youths in custody.
Held: The Court had been wrong not to quash the amended rules on the grounds of procedural breaches. The amended rules would have infringed the human rights of the children to whom such restraint was to be applied and were contrary to the requirements of Articles 3 and 8 of the ECHR, because:
i) It reminded itself of the general position under Article 3 of the ECHR that physical force in respect of a person deprived of his liberty that is not strictly necessary diminishes human dignity and is in principle a violation of Art 3.
ii) It noted that the House of Lords in its judicial capacity has declared that Article 3 when applied to children in custody had to be interpreted consistently with the provisions of the UN Convention on the Rights of the Child 1989 in particular Articles 37 and the views of the Committee on the Rights of the Child as the expert monitoring body charged with the implementation of the state’s obligations under the Convention.
[1] It further noted that in General Comment 8 of the UN Committee on the Rights of the Child indicate that deliberate infliction of pain is not permitted as a form of control of juveniles.
iii) It concluded that both pain compliance control techniques, and restraint generally when applied for the purposes contemplated in the amended rules would violate the principles of Article 3, when applied to children.
iv) It rejected a submission on behalf of the Secretary of State that any over-broadness of the amended Rules could be cured when read down in the light of detailed policy instructions that the Secretary of State for Justice would give to staff operating the rule.
v) It concluded that in any event the advice given in the Code of Practice about restricting the use of restraint was uncertain and unsatisfactory and had not been changed to apply to the new regime of the amended rules broadening the power to use restraint in support of good order and discipline.
vi) It rejected the only evidence in the case in which it was suggested that use of restraint was strictly necessary to enforce good order and discipline. This evidence was a statement of Mr. Wilson-Smith director of Hassockfield STC. The Court was critical of this evidence and its consistency with the law at the time of Adam’s death [24]. It noted in particular that the view of the law taken by Mr. Wilson Smith and leading counsel for Serco at the Rickwood inquest was wrong.
vii) It concluded that the amendments could not be justified as strictly necessary to maintain discipline. The amended rules therefore violated both Article 3 and Article 8 ECHR.
Judges:
Buxton LJ, Tuckey LJ, Keene LJ
Citations:
[2008] EWCA Civ 882, [2009] 2 WLR 1039, [2009] QB 657, [2009] UKHRR 688
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Mouisel v France ECHR 14-Nov-2002
The applicant had been sentenced to 50 years’ imprisonment for several offences. He had leukemia and was to receive chemotherapy in hospital. He complained of the conditions to which he was subjected during the hospital visits, including the . .
Cited – Faizovas, Regina (on the Application of) v Secretary of State for Justice Admn 9-May-2008
Challenge by elderly prisoner with cancer to be handcuffed whilst attending hospital. He was in prison for a violent sexual offence, and whilst in prison had not engaged in offending reducing programs. . .
Cited by:
Cited – Pounder, Regina (on the Application of) v HM Coroner for the North and South Districts of Durham and Darlington and others Admn 22-Jan-2009
The deceased died aged 14 in a Secure Training Centre by hanging. He had complained of his treatment and restraint methods used. The mother sought judicial review of the conduct of the inquest, wanting the coroner not to have ruled on the legality . .
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – FGP v Serco Plc and Another Admn 5-Jul-2012
The claimant said that whilst he had been being taken from an immigration detention centre to hospital, he had been restrained by various forms of handcuffs. He said that had been unlawful.
Held: The claim failed: ‘ the recommendation that . .
Lists of cited by and citing cases may be incomplete.
Torts – Other, Prisons, Human Rights
Updated: 18 July 2022; Ref: scu.272235