Index
Para No
Introduction 1
SR’s history 2
The pre-sentence report 10
The justices’ decision on 10th April 12
The justices’ decision on 15th May 14
The district judge’s decision on 23rd May 18
The application for judicial review 28
The two issues for the court 31
Young Offender Institutions for boys 35
Provision for girls in the prison estate 36
Secure Training Centres 37
Local Authority Secure Units 38
Some statistics 40
Provision of places 44
The Legislative Framework 47
The ECHR: the arguments in outline 56
ECHR Article 8 58
ECHR Article 14 68
The weight given to decisions made by Parliament 75
The justification for discriminatory treatment 79
The defence: (i) A legitimate objective 87
The defence: (ii) Proportionality 88
The claimant’s riposte 95
The effect of the Children Act 100
The incompatibility challenge 102
The challenge to the district judge’s decision 105
Addendum 113
Lord Justice Brooke : This is the judgment of the court.
Introduction
This is an application by a 16-year-old boy, whom we will call SR, for judicial review of a decision by District Judge Harris sitting in the Nottingham Youth Court on 23rd May 2001 to remand him in custody pending sentence in Onley Young Offenders’ Institution (“YOI”). SR also seeks a declaration that section 98 of the Crime and Disorder Act (“CDA”) 1998 is incompatible with the European Convention on Human Rights (“ECHR”) because it unlawfully discriminates against 15 and 16 year old boys, in contrast to girls of the same age, when they are remanded in custody pending trial, being a process in which their ECHR Article 5 rights are engaged.
SR’s history
SR was born in January 1985. He had a wretched early childhood. His father, who was violent to both SR and his mother, may have suffered from mental health problems. Concerns have also been expressed that SR may have experienced sexual and physical abuse from him. He was eventually imprisoned following an incident when he dressed up as a Nazi and held SR and his family all hostage. Armed police had to surround their house in order to facilitate their release. A little later, when he was five years old, SR’s mother was sentenced to ten years’ imprisonment for a serious offence of arson when she set fire to a neighbour’s house. He had lost contact with his father, and his mother is now back in prison. He has little contact with his 15-year old brother, who attends a residential special school which helps severely damaged young people. He last saw his 14-year old sister, who lives in a therapeutic community, two years ago.
He has been in the care of the Nottingham City Council since he was five years old. His present social worker is supervised by Mary Reville, the team manager of the council’s “children in need” team. During his eleven years in care the council has often experienced difficulty in placing him in appropriate accommodation. He has had a large number of foster placements and has been placed in a large number of local authority children’s homes. His behaviour has steadily deteriorated over the years. He has attended a number of special schools in the past, but he has had no schooling at all for 2-3 years.
In August 1998, when he was 13, he received a 3-year supervision order for 25 criminal offences. He was back in court the following month, for three more offences, and he had two more court appearances (for five more offences) before the end of that year. In March 1999, when he was in court again for nine more offences, he was sentenced to an 18-month secure training order. He was just over 14 years old. A further 3-month secure training order was made a year later.
In November 1999, while he was at the secure training centre (“STC”), he saw Dr Withecomb, a consultant psychiatrist. He reported that SR was showing signs of becoming institutionalised. He described him as an extremely damaged young man whose placement at Medway, in keeping with all his other care experiences, had not been an appropriate or helpful one. His poor ability to make relationships with others indicated high levels of psychological dysfunction.
Dr Withecomb advised that ideally SR should be managed, at least initially, in a secure but therapeutic environment. There he should enjoy a physical containment that would help him feel safe and protected from himself and others. The staff would have to be strong enough to remain motivated to work with him, despite physical and verbal attacks. Even if he responded well overall, he would also need a high level of psychological support. Without an appropriate placement of this kind, he would certainly continue on a delinquent and anti-social path. Dr Withecomb considered him to be at high risk of committing sexual acts against others and of harming himself.
When he was released from Medway, no permanent placement could be found for him, and he started committing offences again. In March, when he was back in court for nine more offences, he was sent back to the STC for three months. In September he was in court again (six more offences: 18-month supervision order). In October he dowsed a social worker in Penrith with flammable liquid and set fire to his arm. He was sent back to Nottingham, but a place was then found for him in a local authority secure unit (“LASU”) in Cumbria, from which he was discharged after a month due to his unmanageable behaviour. All the council’s efforts to find a secure longterm placement had so far failed.
A diary of events kept by his social worker between December 2000 and May 2001 vividly portrays the efforts the council was making to find him appropriate accommodation during this period. Their usual resources were not available to them because SR had behaved so badly in the past, and he was barred from many suitable places. On one occasion in early 2001 he was placed at a guest house where he wrecked his bedroom. On another he was placed at a hotel where he was asked to leave after he had been making obscene phone calls to members of the public. One unit refused him when he showed no remorse for the incident the previous October, and said he would do it again. He could not be placed in an ordinary community home because he had held two children hostage at such a home the previous year.
His supervising officer was now Matthew Rice, of the Nottingham Youth Offending Team. On 16th February he was found guilty of the Penrith offence, and was remanded into local authority care pending the preparation of a pre-sentence report. On that occasion Mary Reville had prepared a written report in which she told the court that the council was unable to provide accommodation for him. On 27th March he was found guilty of two more offences.
The pre-sentence report
In his pre-sentence report, dated 6th April 2001, Mr Rice said there was no doubt that SR was a damaged young man with complex needs. His offending behaviour was part and parcel of his overall emotional and behavioural difficulties which had been identified at an early age. Since then his behaviour had deteriorated within the care system, and in the absence of specialist resources and a therapeutic placement many aspects of his behaviour had not been sufficiently addressed. Currently his unstructured environment and the lack of boundaries made the risk of re-offending high, and any further offences had the potential to be of a serious nature.
Mr Rice suggested that a long term therapeutic input, facilitated by those with statutory child care responsibilities, was needed. Prison Service establishments were clearly not equipped to deal with many aspects of his behaviour. He said that a detention and training order would only be a short term expedient.
The justices’ decision on 10th April
On 10th April the justices adjourned his sentencing until 19th June so that a report could be prepared by a psychiatrist in Nottingham. He was remanded into the care of the local authority for this purpose. In the event, he was seen by a different psychiatrist, and his sentencing was further adjourned until 30th July. The district judge then gave a strong indication that he was minded to make a community rehabilitation order with a condition of psychiatric treatment. He wished the local authority to seek a secure accommodation order pursuant to section 25 of the Children Act. The later history is set out in the Addendum to this judgment.
Because he was not detained in custody after 10th April, he continued to offend. When he returned to court in mid-May he admitted a few other offences. The offences alleged against him (which are marked with a “G” if he admitted them) read as follows:
2000 Oct 3 Affray (G)
2001 Jan 2 Common assault (G)
Jan 31 Malicious telephone call (G)
April 3 Threatening behaviour
April 8 Criminal damage to a window
April 9 Criminal damage to a police car
April 19 Dwellinghouse burglary
April 21 Theft of a credit card (G)
Criminal damage to a brief case (G)
Criminal damage to a glass panel on a bus (G)
April 26 Attempted theft of a motor vehicle
May 2 Taking a motor vehicle without consent (“TWOC”)
May 4 TWOC (G)
May 5 TWOC (G)
May 9 TWOC
May 10 TWOC
May 12 Attempted theft of a motor vehicle
May 14 Theft from a shop.
The justices’ decision on 15th May
On 15th May he was brought before the Nottingham Youth Court in police custody following his arrest for theft. The lay justices sitting that day then had to decide what to do with him pending the sentencing hearing which was then five weeks away. Sections 23(4)-(5A) of the Children and Young Persons Act (“CYPA”) 1969, as substituted by the CDA 1998, provide that:
“(4) Where a court, after consultation with a probation officer, a social worker of a local authority social services department or a member of a youth offending team, declares a person to be one to whom subsection (5) below applies –
(a) it shall remand him to local authority accommodation and require him to be placed and kept in secure accommodation if-
(i) it also, after such consultation, declares him to be a person to whom subsection (5A) below applies: and
(ii) it has been notified that secure accommodation is available for him;
(b) it shall send him to a remand centre, if paragraph (a) above does not apply and it has been notified that such a centre is available for persons to whom subsection (5) below applies; and
(c) it shall remand him in prison, if neither paragraph (a) nor paragraph (b) above applies.”
It has never been in dispute that subsection (5)(b) applied to SR, since he had a recent history of absconding while remanded to local authority accommodation, he was charged with an offence of theft alleged to have been committed while on remand, and a court would have little difficulty in concluding that a secure remand was needed to protect the public from serious harm from him. Subsection (5A), for its part, provides that:
“(5A) This subsection applies to a person if the court is of the opinion that by reason of his physical or emotional maturity or a propensity of his to harm himself, it would be undesirable for him to be remanded to a remand centre or a prison.”
On 15th May the lay justices sitting in the Youth Court were advised by a member of the youth offending team that SR was not considered to be a vulnerable person falling within the definition in subsection (5A). They received evidence, however, that he had repeatedly tried to hang himself while in custody, and he had razor blade cuts to his arms. They therefore found that he was vulnerable and directed that he be remanded to a local authority secure unit (“LASU”) for eight days. They reached this conclusion after reading the pre-sentencing report and taking into account new Home Office guidance. After a further night in police custody (because a place in a secure unit was not available) SR was moved to the East Moor Regional Secure Unit at Leeds on 16th May.
The justices justified their decision on 15th May by saying that SR had a lack of inter-personal skills that could lead to conflict with others. Mr Rice had described him as damaged and had referred to emotional and behavioural difficulties, and the psychiatric report ordered by the court had not yet been prepared. They also took into account his previous attempts at self-harm.
The district judge’s decision on 23rd May
When SR returned to the Youth Court for a further remand hearing on 23rd May, District Judge Harris was sitting. The Assistant Principal of East Moor had written a letter to Mr Rice on 22nd May in these terms:
“As you are aware, SR was admitted to East Moor on 16th May 2001 for a maximum period of eight days. During this time it was agreed that we would assess his vulnerability in the context of a [LASU]. Whilst we cannot replicate the conditions found in custodial settings, we accommodate young men deemed vulnerable in these settings on a regular basis.
In our opinion [SR] is not vulnerable, at least not as vulnerable as many others housed here for this reason. He has demonstrated he is capable of holding his own in peer group settings, he has displayed no tendency to self-harm and has not indicated he has considered this…
He has also publicly stated that he considers East Moor to be an easy option, and has declined to make use of the educational and training facilities on offer. In this context, utilising a scarce resource for SR denies the opportunity to other young men who might be more willing to avail themselves of the chance to gain skills and experience and to address their offending.
As agreed, [SR’s] placement at East Moor will terminate when he returns to court on 23rd May.”
The Youth Justice Board has now taken over responsibility for places taken by offenders under the age of 18 who are sentenced to custody or placed on secure remand, which it fulfils by making contracts with the Prison Service, local authorities or relevant private companies, as the case may be. It appears that Mr Rice had agreed with the East Moor authorities that the youth offending team no longer required a place for SR after 23rd May.
The district judge was therefore notified that secure accommodation was not available to SR after that date. It followed on the face of it that he had no power to remand SR to local authority secure accommodation, however vulnerable he considered him to be, because the requirements of section 23(4)(a)(ii) of the 1969 Act, as substituted, were not now fulfilled.
At the hearing on 23rd May the district judge received evidence from Mary Reville (see paragraph 3 above). She told him she had known SR for some time and expressed the view that he was extremely vulnerable. She would like to see him remanded to a LASU rather than a YOI. The district judge has told this court that he accepted all she said about SR’s needs and how best they might be met. He agreed that without long term therapeutic help SR would inevitably commit further offences, including offences of violence. He preferred to think of him, however, as very needy rather than very vulnerable.
When he gave his reasons for his decision on 23rd May, he said that it was difficult to say SR was vulnerable. “Vulnerable” was a relative term, and he did not consider that the degree of vulnerability present in SR’s case required him to be placed in a secure unit. He added that the fact that there was a scarcity of resources must not be written off. He therefore remanded SR in custody to Onley Young Offenders’ Institution.
In his written evidence to this court, District Judge Harris has said that he learned a lot about SR at the hearing. He found him to be an emotionally damaged young man who urgently required a long term specialist therapeutic placement. He did not find him vulnerable, however, because he was neither emotionally nor physically immature in comparison with the average 16-year old boy. He had coped perfectly adequately with his secure training orders, and he had been capable of holding his own in peer group settings at East Moor.
He also considered that SR did not have a propensity to harm himself. In his seven days at East Moor he had displayed no tendency to self-harm and had not indicated that he had considered it.
In the light of these findings, the district judge decided that it would not be undesirable for him to be remanded to Onley YOI. Whilst he accepted the evidence that SR was emotionally damaged and in need of therapeutic help, it was clear to him that he was not vulnerable in the sense that he would be at risk of self-harm or other harm if placed in that establishment whilst awaiting sentence.
He said that he relied in part on the contents of the report from East Moor. He described it as a unit which specialised in accommodating and caring for young persons who had problems and whose staff obviously had expertise in identifying those who might properly be described as vulnerable. He thought that seven days had given the staff adequate time in which to make an assessment of his vulnerability. He believed that this was compelling evidence which had not been available at the earlier hearing and which justified his reaching a different conclusion.
He added that because he was told by the Youth Offending Team that the remand would have to be to Onley YOI, such a remand was the only course available to him because the condition set out in section 23(4)(b) of the 1969 Act (as substituted) was not fulfilled.
The application for judicial review
This application for judicial review was made on 29th May 2001. On 5th June Jackson J granted the necessary permission and directed that SR should be moved to secure local authority accommodation as soon as such accommodation became available. He directed that the Secretary of State should be notified that a declaration of incompatibility was being sought. The Secretary of State filed evidence in the form of a statement by Mr Hickson, the head of its juvenile offenders unit, and Mr Sales appeared on his behalf at the hearing. Mr Rafferty appeared on behalf of the Crown Prosecution Service as an interested party. In his brief written and oral submissions he supported the arguments adduced by Mr Sales. The Magistrates’ Court filed evidence but was not represented at the hearing. The evidence filed on behalf of SR consisted of witness statements of Mr Driver, his solicitor, and Ms Frances Russell, the Assistant Director of the Howard League for Penal Reform.
Although it had no direct relevance to the issues we had to decide, further evidence has been filed in the form of a psychiatric report by Dr Anthony Livesey dated 15th July, a psychological report by Dr Peter Randall (commissioned by SR's solicitors) dated 14th July, and a report dated 20th July which was submitted to the Nottingham Magistrates’ Court by a senior member of the staff of Aldine House secure unit at Sheffield where SR had been held since 8th June.
Dr Livesey said that SR's emotional immaturity was evident throughout a long interview, and that he might be regarded as operating emotionally at the level of a 12 or 13 year old. He considered that for this reason he possessed such a limited range of coping strategies that he might be at far greater risk of self harm if he were to be placed in a more punitive and stressful environment such as a YOI. Dr Randall thought it simplest to consider SR as a young person with significant emotional and behavioural immaturity who needed structure, support and counselling to help him develop the pro-social inhibitory controls he lacked. The deputy manager (operations) of Aldine House, for her part, said that the staff there believed that SR was not vulnerable but that he knew how to “work the system”. Aldine House would not take him back once he was sentenced due to his thoroughly anti-social behaviour, as described in their report, and the effect that he had had on young people resident there who were truly vulnerable. This detailed report describes the turmoil created at Aldine House on a daily basis by a very disturbed young man.
The two issues for this court
SR’s application, as appears in paragraph 1 above, raises two quite different points. The first puts in issue the lawfulness of the district judge’s decision on 23rd May 2001. The other is concerned with the contention that the different treatment of 15 and 16 year old boys and girls placed on secure remand violates ECHR Article 14, and that section 98 of the CDA 1998, which introduced the substituted provisions of section 23(4)-(5A) of the CYPA 1969, is incompatible with the ECHR.
It is convenient to consider the second of these issues first, in order to understand the legislative framework within which the district judge made his order on 23rd May 2001. Before we describe the development of the law in this area, we need to say something about the different ways in which children under the age of 17 may be detained in custody, whether as sentenced prisoners or on secure remand.
Young Offender Institutions for Boys
In very recent years special provision has been made within the YOI estate for what are called juvenile YOIs. Most of the 13 juvenile YOIs in England and Wales share sites with YOIs for the 18-21 age group, but they are operationally separate. When they are plotted on a map of England and Wales, the effort at a geographical spread still leaves many of their young inmates a long way from their homes. This accommodation is in law prison accommodation, because there is no specific statutory power enabling children on remand to be held in YOIs. The remand prisoners in the juvenile YOIs sleep in separate wings from the sentenced prisoners, although they mix with them for some key daytime activities. Children under the compulsory school leaving age must be provided with education, although provision is only made for 15 hours of education each week: this is soon to be increased to 30. Mr Hickson says that juvenile YOIs are specifically equipped and staffed to provide this education.
He says that the relationships between those in custody and officers in the juvenile estate are different from those in respect of detainees over 18. Staff in the juvenile estate are trained to provide care appropriate for adolescents, and there is said to be a clear recognition of the importance in this regard of fostering pro-social behaviour based on appropriate role models for children.
Ms Russell says, however, that the experience of the Howard League has been that work in the juvenile estate is hampered by the fact that in practice staff are not selected for their abilities to deal with juveniles. So far as their training is concerned, a large part of the six days of specialist staff training, which has been developed by the Trust for the Study of Adolescence, is taken up with explaining technical aspects of the youth justice system. She believes there is little training devoted to helping prison officers understand the complexities of the young people in their care, many of whom have been severely damaged by physical, sexual and emotional abuse. There is also very little training concerned with teaching these young people how to deal with the challenging behaviour which they often display.
Provision for girls in the prison estate
There are no YOIs for girls. On the other hand there are 16 Prison Service establishments in England and Wales (in practice, adult prisons) catering for female prisoners of all ages. In August 1997 this court held that although section 1C of the Criminal Justice Act 1982 authorised the Secretary of State on occasion to place a particular offender under the age of 18 temporarily in a prison or remand centre, it did not permit him to make a general practice of committing young female offenders to adult prisons for allocation (R v Accrington Youth Court ex p Flood [1998] 1 WLR 156). The Prison Service thereupon created separate young offender units within four of their adult prisons (Brockhill, near Redditch; Bullwood Hall, near Southend; Eastwood Park in Gloucestershire; and New Hall, near Wakefield). Girls of 17 placed on secure remand are now held in these units, most of which are necessarily a long way from their homes.
Secure Training Centres
There are now 130 places in secure training centres (“STCs”), which are operated by private sector companies under contract with the Home Office. The first of these centres was opened in 1998, and there are now three of them, at Medway (in Kent), Hassockfield (in County Durham), and Rainsbrook (near Coventry). They were originally designed to cater for children between the ages of 12 and 14, but they are now beginning to take a few older trainees under the detention and training orders introduced by the Criminal Justice and Police Act 2000. Although there is power to hold boys placed on secure remand in STCs with the consent of the Secretary of State, the STCs are much in demand for younger and more vulnerable sentenced juvenile male offenders. There would have to be a substantial expansion in this provision before they could offer places for many boys placed on secure remand. Current expansion plans are described in paragraphs 45-46 below.
Local Authority Secure Units
The primary purpose of the local authority secure estate is to accommodate any child who is being looked after by a local authority pursuant to the Children Act 1989. There are 27 LASUs in England and one in Wales. They are usually small, and they are distributed round the country to provide facilities as close as possible to people’s homes. They have the ability to take children between 10 and 17, and to cater for different educational needs. Their facilities and environment, the small numbers of trainers, the high ratio of staff to children, the staff selection processes, the education and training they provide, including offending behaviour programmes, and the psychological support they offer, all combine to make these units preferable to prison service institutions.
There are, however, only a limited number of places available, and their costs are much higher. At present more than half the places in these units are occupied by younger juveniles sentenced for grave crimes pursuant to what is now section 91 of the Powers of Criminal Courts (Sentencing) Act 2000, or by children held on secure remand. Although remanded juveniles are accommodated at night in different sorts of cells from sentenced juveniles, wherever possible, they typically join together in the regime activities of the unit.
Some Statistics
Between 1980 and 1992 there was a great reduction in the number of children between the ages of 14 and 16 who were placed on secure remand in prison. The numbers dwindled from 3,265 to 1,101 in the case of boys, and from 100 to only one in the case of girls of this age. Although the statistics were then restricted to 15 and 16 year olds, the numbers then doubled in the next four years before falling back again more recently. The number of girls of this age remanded to prison was always tiny: for boys, in 1999-2000 the numbers were levelling off at about 1,600 per year.
Home Office statistics showed the following spread of 15-16 year olds in custody on 31st May 2001:
LASUs Girls Boys
Detention and Training Orders 22 29
Remands 9 44
Long Sentences 4 52
Specialist YOIs
Detention and Training Orders 16 784
Remands - 124
Long Sentences 2 106
Miscellaneous - 16
STCs
Detention and Training Orders 16 32
Long Sentences 1 2
Totals 70 1,174
These figures demonstrate that the number of secure places required for girls aged 15 and 16 at any one time are very small, and the number of secure remand places even smaller. Planning for this very small cohort of girls is also made more difficult because it cannot be predicted with any certainty where in the country at any time a need will arise for a girl to be remanded in custody.
Mr Hickson said that there was a long term pattern of a significant difference between offending by juvenile males and by juvenile females. There are many more juvenile male defendants overall, and the types of offending behaviour typical of juveniles (offences involving significant levels of violence, for instance) make it far more likely that juvenile male defendants will need to be remanded in custody while awaiting trial. He showed us statistics which compared indictment and conviction rates for young offenders of 15 and 16, and these showed a marked preponderance of boys in every category listed.
Provision of places
From 1st April 2000 the Youth Justice Board became responsible for the budget for purchasing secure accommodation for those under 18 who were sentenced or remanded in custody. The Board aims to bring about a progressive improvement in the volume, geographical spread and quality of places for different categories of children and young people requiring secure accommodation. Mr Hickson told us that this programme of improvement would take some years to implement, because high quality places are expensive and require substantial planning and contracting work before they can be added to the available options.
When we sought further information about the Board’s plans, we were told that in 2002 64 additional STC places would become available, by expanding two existing STCs. These places were already targeted for the accommodation of sentenced girls aged 15 and 16, whose need for access to this accommodation was assessed to be greater than that of male juvenile remandees (for the numbers of sentenced girls of this age on 31st May 2001, see para 37 above).
We were also told that within a two-year horizon there should be a total of 164 extra STC places available, and within a 3-4 year horizon it is proposed that a further 200-300 places should be provided. In other words, if these plans come to fruition, there will be roughly 500-600 available places in the STC estate in contrast to the 130 places available today. We were told that experience has shown that it takes four to five years to complete a new STC unit when the various stages of site location, planning permission and construction are all taken into account. In the note we received after the hearing this new STC provision was described as “high quality custodial accommodation”.
The Legislative Framework
Section 23 of the CYPA 1969, as originally enacted, empowered a court, if it certified a young person to be of so unruly a character that he could not safely be committed to the care of a local authority, to be committed on remand to a remand centre or a prison. In 1979 and 1981 this provision was modified by statutory instrument so that the courts no longer possessed this power in relation to girls under the age of 17 or boys under the age of 15 (see SI 1979/125 and SI 1981/81). In practice numbers of young males and females over these ages were remanded in adult prisons.
In 1991 Parliament decided to substitute a new provision in section 23 of the 1969 Act so that courts in future would remand both boys and girls aged 15 and 16 to local authority secure accommodation. In this way the practice of remanding boys of 15 and 16 to adult prisons or YOIs would be brought to an end. If this new provision had ever been brought into effect it would have meant that all children of 15 and 16 on secure remand would have been held in local authority secure accommodation. Frances Russell of the Howard League describes this Parliamentary intention as a long term commitment to end the imprisonment of 15 and 16 year old boys on remand. She suggests that it was made in recognition of the particular impoverishment of remand regimes and the damage done to the children who experienced them.
In the event, this new provision was never implemented. It appears that it was thought at the time that the provision of 170 additional secure unit places would be sufficient to meet the whole of the demand for secure remand places for boys and girls aged 15 and 16. Although a building programme was put into effect for this purpose, a rapid increase in the number of young people being given prison sentences or being placed on secure remand made this small amount of additional provision inadequate. Between June 1993 and June 1998 the number of children of 15 and 16 committed to custody between conviction and sentence or on secure remand increased by nearly 90%.
Section 20 of the Criminal Justice and Public Order Act 1994 was another provision which was never brought into effect. The Parliamentary intention in that statute was that all boys and girls between the ages of 12 and 15 would be placed on secure remand in local authority secure accommodation. This intention could not be implemented, however, so long as there were any children of 15 or 16 remanded in Prison Service accommodation, an aspiration which was never achieved.
In the result, in the years up to 1998 the original provisions of section 23 of the CYPA 1969, as modified in 1979 and 1981, were still on the statute book (for these provisions, see para 47 above). There was no power to place girls of 15 and 16 on secure remand in Prison Service institutions, whereas boys of 15 and 16 could be so placed.
A review conducted in the autumn of 1997 revealed that there were 75 unsentenced 15-year old boys and 173 unsentenced 16-year old boys held in Prison Service institutions. Of these, a total of 156 were still awaiting trial (as opposed to awaiting sentence). Mr Hickson said that the objectives of the 1991 Act had not been met six years later. There remained concern about children’s experiences of custody. Incidents of self-harm and bullying were reported, and there was concern about the contact these 15 and 16 year old boys had with older and more experienced young prisoners.
Mr Hickson said that there was still at that time a substantial shortage of local authority secure places. He suggested that the implementation of more extended provision was expensive and time-consuming. This was particularly the case because these places were needed in small units distributed around the country in order to provide reasonable access to courts, families and supervising services, although this was not the only reason for this inadequate provision.
He said that the purpose of the CDA 1998, which came into force on 1st June 1999, was to allow better targeting of available accommodation in appropriate cases. Its aim was to ensure that priority was given to taking the more vulnerable young boys out of prison accommodation, and to give the courts the discretion not to place them in such accommodation. Under the new regime, first priority was to be given to girls of 15 or 16 place on secure remand. Boys of the same age may also be placed on secure remand in local authority secure accommodation if they are vulnerable and if a place is available. All other boys in that age group are to be remanded in YOIs (or, exceptionally, in adult prisons). It is this provision which SR contends is incompatible with the ECHR because boys are treated worse than girls of the same age.
Ms Russell says that under the former regime a local authority would assess a child between the ages of 12 and 17 if an order was made under section 23 of the 1969 Act. The child would then be placed in an appropriate place, whether it be an open children’s home or a foster placement, or the local authority might return to court to apply for an order placing a 15- or 16-year old in a secure unit. As we have already observed, the courts did have a power to remand a 15- or 16-year old boy to prison. She says that the legislative change in 1998, which empowers courts to order children between 12 and 17 to be remanded to local authority secure units, has inevitably resulted in more children being placed in these units, putting pressure on places and reducing the option of placing 15- and 16-year old boys in them.
The ECHR: the arguments in outline
Mr Wise submitted that section 23 of the CYPA 1969, as amended by section 98 of the CDA 1998, is incompatible with ECHR Article 14, and he sought a declaration of incompatibility to this effect. Mr Sales, for his part, did not suggest that we should adopt any unconventional interpretative approach when construing the clear words of section 98. The Home Office’s justification for the apparently discriminatory effect of the new statutory provision was that when Parliament was concerned to legislate in 1998 for appropriate provision to be made for boys and girls of 15 and 16 on secure remand, the girls had a number of Article 8 rights which had to be protected, and that the selection of priorities in those circumstances was very much a matter for a democratically elected parliament and not for the courts.
It is therefore necessary to consider the provisions of Article 8 and Article 14, so far as they are applicable to boys and girls aged 15 and 16 placed on secure remand, in some detail before going on to see how Mr Sales’s arguments fit into the growing caselaw on the effect of the ECHR when applied in our national courts.
ECHR Article 8
ECHR Article 8 provides, so far as is material, that:
“(1) Everyone has the right to respect for his private and family life…
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of … public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedom of others.”
Outside a prison context, the Strasbourg authorities have made it clear that the concept of “respect for private life” is a very wide one. In Bruggemann and Scheuten v Germany (1981) 3 EHRR 244 the European Commission on Human Rights (“ECommHR”) said (at para 55):
“The right to respect for private life is of such a scope as to secure to the individual a sphere within which he can freely pursue the development and fulfilment of his personality. To this effect, he must also have the possibility of establishing relationships of various kinds … with other persons.”
In Niemetz v Germany (1992) 16 EHRR 97 the ECtHR (at para 29) took up this theme:
“… it would be too restrictive to limit the notion to an ‘inner circle’ in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world encompassed within that circle. Respect for private life must also comprise, to a certain degree, the right to establish and develop relationships with human beings.”
In Botta v Italy (1998) 26 EHRR 241 the ECtHR said (at para 32):
“Private life, in the Court’s view, includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in her relations with other human beings.”
More recently, in Messina v Italy (No 2), Judgment of 28 September 2000, the EctHR has said (at para 61):
“The court recalls that all lawful detention pursuant to Article 5 of the Convention naturally brings with it a restriction for the interested party of his private and family life. It is, however, essential in respect of his family life that the penitentiary administration helps the inmate to maintain contact with his close family.” (Translation from French original)
Because a custodial sentence, or a secure remand, constitutes such a serious infringement of the right recognised by Article 8(1), Parliament has set a high hurdle to be crossed before courts can lawfully make an order of this kind. So far as sentencing is concerned, section 70(2) of the Crime (Sentencing) Act 2000 speaks of an offence (or offences) so serious that only a custodial sentence can be justified. In the context of a violent or sexual offence, the court must be of an opinion that only a custodial sentence would be adequate to protect the public from serious harm from the offender. Similarly, section 23(5)(b) of the CYPA, as amended, provides that a court may only order a secure remand if it is satisfied that it is needed to protect the public from serious harm from the alleged offender.
In a custodial context it is now well known that sentenced and remand prisoners do not lose all their civil rights when their liberty is taken away. In R(Daly) v Home Secretary [2001] UKHL 26 at [5], [2001] 2 WLR 1622, Lord Bingham of Cornhill said:
“Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order. And it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights.” (Emphasis added)
All the contracting states of the Council of Europe have ratified the United Nations Convention on the Rights of the Child (“UNCRC”). Mr Sales accepted that where children in custody are concerned the provisions of the convention are available to inform the content of ECHR Article 8. It is therefore necessary to examine the relevant provisions of the UNCRC with some care.
All the states parties to the UNCRC undertook to respect and ensure the rights “set forth” in that convention to every child within their jurisdiction without discrimination (UNCRC Article 2.1). It follows that every public authority concerned with issues relating to the care and management of children in custody must take their interests as a primary consideration (UNCRC Article 3.1), and must afford them the following rights and entitlements, so far as they are consistent with their custodial status:
i) The entitlement of such protection and care as is necessary for their well-being;
ii) The right to maintain personal relations and direct contact with both their parents on a regular basis;
iii) The right to a standard of living adequate for their physical, mental, spiritual, moral and social development;
iv) The right to insist that any period of imprisonment must be in conformity with the law and used as a measure of last resort and for the shortest appropriate period of time;
v) The entitlement, when deprived of liberty, to be treated with humanity and respect for the inherent dignity of the human person and in a manner which takes into account the needs of persons of their age;
vi) The entitlement, when deprived of liberty, to be separated from adults unless it is considered in their best interests not to be so separated;
vii) The entitlement, when deprived of liberty, to maintain contact with their family through correspondence and visits, save in exceptional circumstances;
viii) When it is alleged or recognised that they have infringed the penal law, the right to be treated in a manner consistent with the promotion of their dignity and worth.
(See UNCRC Articles 3.2, 9.3, 27.1, 37(b) and (c), and 40.1).
The link between the rights and entitlements of a child which the UNCRC proclaims and a child’s right to respect for his or her private life which is granted by ECHR Article 8(1) is vividly articulated by the closing words of UNCRC Article 40, which sets out the right mentioned in (viii) above. Article 40 ends in this way:
“[Such a child’s right to be treated in a manner consistent with his or her sense of dignity or worth] reinforces the child’s respect for the human rights and fundamental freedoms of others … and takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”
ECHR Article 14
ECHR Article 14, for its part, provides that:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
It was not in dispute that section 98 of the CDA continued to institutionalise discriminatory treatment on the ground of sex, because girls aged 15 and 16 placed on secure remand were treated more favourably than boys of the same age. It was not suggested that the female comparators were not in an analogous situation to their male counterparts, a matter that is often of importance in Article 14 cases. Mr Sales accepted, moreover, that very weighty reasons are generally required for differences of treatment based solely on gender (Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 para 78).
It was also not in dispute, in the way that the case was presented to us, that Article 14 was engaged because the facts in issue fell within the ambit of ECHR Article 5.1(c) and/or (d). For the relevance of the test of “ambit”, see Rasmussen v Denmark (1984) 7 EHRR 371, para 29:
“Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to 'the enjoyment of the rights and freedoms' safeguarded by those provisions. Although the application of Article 14 does not necessarily presuppose a breach of those provisions - and to this extent it has an autonomous meaning - there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter.”
Mr Wise did not suggest that there had been a breach of any part of Article 5 as such. In particular, the European Court of Human Rights ("ECtHR") has made it clear in Ashingdane v United Kingdom (1985) 7 EHRR 528 that differences in the quality of the place, environment and conditions of detention in which a person is lawfully detained could not in themselves amount to a breach of Article 5(1). (See, also, in relation to Article 5.4, the decision of the ECommHR in KM v United Kingdom (3rd December 1996), cited by Rose LJ in R (Burgess) v Secretary of State for the Home Department (COT 3rd November 2000), para 23).
Mr Sales is clearly right when he contends that the fact that the applicant is not complaining of a violation of Article 5 brings this complaint of discriminatory treatment contrary to Article 14 more or less in line with allegations of violations of other articles of the ECHR (such as Articles 8-11) which allow scope for a state to justify what would otherwise be an actionable interference with a Convention right. In its earliest significant ruling on Article 14 in the Belgian Linguistics case 1 EHRR 251, the ECtHR said (at para 10):
“10. In spite of the very general wording of the French version (“sans distinction aucune”), Article 14 does not forbid every difference in treatment in the exercise of the rights and freedoms recognised. This version must be read in the light of the more restrictive text of the English version (“without discrimination”). In addition, and in particular, one would reach absurd results were one to give Article 14 an interpretation as wide as that which the French version seems to imply. One would, in effect, be led to judge as contrary to the Convention every one of the many legal or administrative provisions which do not secure to everyone complete equality of treatment in the enjoyment of the rights and freedoms recognised. The competent national authorities are frequently confronted with situations and problems which, on account of differences inherent therein, call for different legal solutions; moreover, certain legal inequalities tend only to correct factual inequalities. The extensive interpretation mentioned above cannot consequently be accepted.
It is important, then, to look for the criteria which enable a determination to be made as to whether or not a given difference in treatment, concerning of course the exercise of one of the rights and freedoms set forth, contravenes Article 14. On this question the Court, following the principles which may be extracted from the legal practice of a large number of democratic States, holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.”
Nearly 20 years later the ECtHR reformulated the guiding principles more succinctly in Inze v Austria (1987) 10 EHRR 344, para 41, in these terms:
“For the purpose of Article 14, a difference of treatment is discriminatory if it ‘has no objective and reasonable justification’, that is, if it does not pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.
The Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law; the scope of this margin will vary according to the circumstances, the subject-matter and its background.
In this respect, the Court recalls that the Convention is a living instrument, to be interpreted in the light of present-day conditions.”
It follows, therefore, that it is open to the Home Office to justify the provisions of section 98 of the CDA by demonstrating that the difference in treatment as between boys and girls of 15 and 16 who are placed on secure remand has an objective and reasonable justification, once its aim and effects are properly understood. Such justification, which must take account of present-day conditions, will only succeed in averting a finding that Article 14 has been violated if
i) The discriminatory treatment pursues a legitimate aim; and
ii) There is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.
The burden of justifying the discrimination complained of falls on the state (see Pine Valley Developments Ltd v Ireland (1992) 14 EHRR 319, para 64.)
The weight given to decisions made by Parliament
When the ECtHR is pursuing its supervisory role over complaints made by citizens of contracting states, it affords to those states a certain margin of appreciation when it assesses whether and to what extent differences in otherwise similar situations justify a different treatment in law (Abdulaziz, para 72, Chassagnou v France (2000) 29 EHRR 615, para 113). The higher courts have recently provided valuable guidance as to the way in which our national courts in turn should show appropriate deference to the decisions of an elected Parliament. Thus in Brown v Stott [2001] 2 WLR 817 Lord Bingham of Cornhill said at pp 834F-835B:
“The European Convention is an international treaty by which the contracting states mutually undertake to secure to all within their respective jurisdictions certain rights and freedoms. The fundamental nature of these rights and freedoms is clear, not only from the full title and the content of the Convention but from its preamble in which the signatory governments declared:
'their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend.'
Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies.” (Emphasis added)
In the same case, Lord Steyn considered at p 843A the pressing social problem which Parliament had been concerned to address, "namely the difficulty of law enforcement in the face of statistics revealing a high accident rate resulting in death and serious injuries”, and said:
“The legislature was entitled to regard the figures of serious accidents as unacceptably high. It would also have been entitled to take into account that it was necessary to protect other Convention rights, viz the right to life of members of the public exposed to danger of accidents: see article 2(1). On this aspect the legislature was in as good a position as a court to assess the gravity of the problem and the public interest in addressing it.” (Emphasis added)
Similar helpful guidance is to be found in the opinion of Lord Hope of Craighead in McIntosh v Lord Advocate [2001] UKPC D1 at [36], [2001] 3 WLR 107, when he said:
“The statutory scheme contained in the 1995 Act is one approved by a democratically elected Parliament and should not be at all readily rejected. I would for my part endorse the conclusion of the Court of Appeal (Criminal Division) in R v Benjafield [2001] 3 WLR 75, 103, para 87:
'It is very much a matter of personal judgment as to whether a proper balance has been struck between the conflicting interests. Into the balance there must be placed the interests of the defendant as against the interests of the public…’”
In Donoghue v Poplar HARCA [2001] EWCA Civ 595 at [69], [2001] 3 WLR 183, Lord Woolf CJ spoke to similar effect:
“There is certainly room for conflicting views as to the social desirability of [a registered social landlord] being able to grant assured shorthold tenancies which are subject to section 21(4) of the [Housing Act 1988]. Mr Holmes considers the present policy mistaken. However, in considering whether Poplar can rely on Article 8(2), the Court has to pay considerable attention to the fact that Parliament intended when enacting section 21(4) of the 1988 Act to give preference to the needs of those dependent on social housing as a whole over those in the position of the defendant. The economic and other implications of any policy in this area are extremely complex and far-reaching. This is an area where, in our judgment, the courts must treat the decisions of Parliament as to what is in the public interest with particular deference. The limited role given to the court under section 21(4) is a legislative policy decision. The correctness of this decision is more appropriate for Parliament than the courts and the HRA does not require the courts to disregard the decisions of Parliament in relation to situations of this sort when deciding whether there has been a breach of the convention.”
The justification for the discriminatory treatment of boys and girls
Mr Hickson told us that there were four major considerations which underpinned Government policy in the matters with which we are concerned in this case:
i) Remanded and sentenced detainees should be accommodated separately wherever possible;
ii) Adults and juveniles should also be accommodated separately wherever possible;
iii) Detainees, especially those on remand, should be accommodated as close to their homes and relevant court centre as possible;
iv) Males and females should be accommodated separately within the prison estate, owing to differences in the characteristics of the two populations and the separate facilities each requires.
He said that these principles were widely accepted within the Home Office and the penal system and by commentators on penal policy, although operational experience in relation to the first three demonstrated that at times it was not always possible to achieve the ideal in every case.
He said that two other matters have to be taken into account in the formulation of policy. The first is that the provision of good quality secure accommodation for juveniles, designed to accommodate their particular needs, is expensive and has to be cost effective in public finance terms, when competing with every other claim made on limited public funds. The second is that it is important that juveniles be held on remand in places where they mix with others of their own age. They therefore need to be held in groups, rather than being dispersed in isolation from others of their own age. These two considerations mean that a critical mass of numbers of juveniles to be held at one location is required to justify the provision of specialist secure accommodation for them at that location.
The dilemma that faced policy-makers was that there were too few juvenile female remandees to allow a network of female specialist juvenile YOIs to be developed which would meet the objective of providing secure accommodation for female juveniles close to their homes. With boys, in contrast, the numbers to be accommodated across the country are much greater, so that the required “critical mass” can be achieved at a significant number of locations. As a result the network of 13 specialist juveniles YOIs was developed, which allows them to be accommodated “close to their homes”. Mr Hickson has told us that the investment in the network of male specialist juvenile YOIs has been considerable, to ensure that the regimes they provide for boys are suitable for their age and particular needs.
This is the reason why it was decided to give first priority to 15- and 16-year old girls placed on secure remand. The LASUs provided suitable specialist regimes, in locations with the necessary critical mass, and “close to their homes”, which would not otherwise have been available to these girls. At the same time it was decided that second priority for places on secure remand in LASUs should be given to vulnerable boys in this age range.
This is the legitimate objective which is asserted as the justification of the discriminatory policy: to detain all juvenile defendants on secure remand in appropriate accommodation within reasonable visiting distance of their homes. Because STC space was not yet available and there are no specialist female YOIs, the alternative would have been to accommodate these girls in female adult prisons. Mr Hickson said that he was not aware of any interest group or commentator on the penal system who advocates that this would be a desirable option to pursue.
Mr Hickson ended this part of his evidence in these terms:
“In assessing whether the sytem of priorities established by the 1998 Act is objectively justified, it may assist the court if I explain what the alternatives might be.
First, as a logical possibility, the power of courts to remand boys but not girls in custody in the Prison Service could be removed. But, as I have explained, there are simply too few LASU and STC places to accommodate all male juvenile remandees. The highly undesirable consequence would be that male juveniles, in respect of whom there may exist very powerful reasons for their detention on remand, would have to be released in many cases. Also, other groups presently accommodated in LASUs would have to be dislodged (eg sentenced section 91 boys – the most serious offenders who range from age 10 upwards – would have to be moved to Prison Service accommodation at an indefensibly early age.)
Second, the courts could be given power to remand girls as well as boys in custody in the Prison Service. But the establishments in which the girls would be remanded would be adult prisons, not specialist YOIs which are available for boys. The Home Office and, I believe, the vast majority of commentators would regard this as a very retrograde step creating an imbalance of treatment between boys and girls which could not be justified.”
We were told that the Home Office has not lost sight of the long term aim of ending the placement of 15 and 16 year olds with the Prison Service altogether. Mr Hickson said that when this can be achieved depends on a number of factors, including the speed with which new accommodation could be funded and provided (taking account, for example, of planning constraints), and the overall number and placement needs of juveniles remanded and sentenced by the courts.
The defence: (i) A legitimate objective
After identifying the legitimate objective we have mentioned in paragraph 79 above, Mr Sales submitted that this objective was aimed at securing the Convention rights of boys and girls (and in particular their rights under Article 8: see paras 58 to 67 above), balancing them against each other as was judged appropriate. He picked out in particular the Article 8 right to develop and mature psychologically and socially, and to form appropriate social relationships; and the right to respect for their family relationships, by ensuring the possibility for these children of maintaining reasonable contact with their homes (see paras 57 and 58 above). He added that the policy was also aimed at securing the protection of the rights recognised by the UNCRC (see para 66 above).
The defence: (ii) Proportionality
A policy choice made by Parliament in primary legislation is under challenge in this case, and we have described in paras 75-78 above how we are adjured to give appropriate weight to decisions made by a democratically elected Parliament. Mr Sales accepted that there must be a reasonable relationship of proportionality between the measure in question and the legitimate objective which it serves to promote. In this case he argued that the court should accord deference to complex choices made by Parliament in a complex area (cp Donoghue v Poplar HARCA [2001] EWCA Civ 595 at [69]: see para 78 above).
He submitted that section 98 of the CDA 1998 established a system of priorities for access to the limited amount of LASU accommodation available for remandees aged 15 and 16 and was a proportionate measure in the circumstances. The practical alternatives to eliminate the difference in treatment of boys and girls are not at present viable. He said that the legislation struck a reasonable balance between the rights of boys and girls, having regard to the requirement of satisfying in substance their common needs and rights as children in the light of the facilities available.
He added that it was important to note the limits of the proportionality doctrine in the present context. The difference in treatment could not be said to be disproportionate simply because insufficient LASUs were available to accommodate every child of 15-16 detained on remand, on the footing of an allegation that the state should in the past have devoted more public resources, which are always limited, to building more LASUs. He pointed out that the ECHR did not require contracting states to abandon principles of securing proper value in public spending decisions – not least because in taking such decisions states are inevitably involved in weighing up and balancing competing claims as to how limited public funds should be spent for the public good. This exercise necessarily involves weighing up and balancing competing rights, freedoms and interests of different groups of citizens.
He showed us two recent decisions of the ECtHR in this context. In Osman v United Kingdom (2000) 29 EHRR 245, where it was being argued that the state should have expended more resources in protecting Mr Osman and his father, the court said (at para 116):
“For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the state.”
Similarly, in K & T v Finland (2001) 31 EHRR 18, where the adequacy of Finland’s statutory child care arrangements were under scrutiny, the ECtHR said (at para 135):
“[In deciding whether the reasons adduced to justify the measures in question were adequate and sufficient for the purpose of ECHR Article 8(2)] the Court will have regard to the fact that perceptions as to the appropriateness of intervention by public authorities in the care of children vary from one Contracting State to another, depending on such factors as traditions relating to the role of the family and to State intervention in family affairs and the availability of resources for public measures in this particular area.” (Emphasis added)
The court added, however, in the sentence following the passage on which Mr Sales relied, that:
“… consideration of what is in the best interest of the child is in every case of crucial importance.”
Because there is still so little ECHR jurisprudence at national level, Mr Sales took us to R v Chief Constable of Sussex ex p ITF [1999] 2 AC 418, where Lord Slynn of Hadley applied the doctrine of proportionality in an EC context (at pp 438H-439C):
“I do not accept that the [European Court of Justice in Commission of the European Communities v French Republic [1997] ECR I-6959] is here saying that in every case where steps have to be taken in a member state a court must consider whether somehow the member state could have found, somewhere, the money necessary to take steps which could theoretically have been taken. If that were so, the state could always in theory call upon moneys allocated for education or health or defence and use them for this kind of purpose. That cannot have been intended. It would in any event require investigation as to whether other competing claims for money allocated allowed moneys to be taken away from other areas of government. That is an impossible inquiry for the court to undertake and I think is an unreasonable exercise for the member state itself to be required to undertake.
What is required in a case like the present where the Chief Constable has statutory and common law duties to perform is to ask whether he did all that proportionately and reasonably he could be expected to do with the resources available to him.”
Mr Sales submitted that in all the circumstances, notwithstanding their discriminatory effect, the system of priorities established by section 98 of the CDA 1998 for the allocation of children aged 15 and 16 placed on secure remand was not incompatible with SR’s Convention rights.
The claimant’s riposte
Mr Wise’s arguments to contrary effect are powerfully summarised in paragraphs 10.8 to 10.17 of his skeleton argument, which are supported by Ms Russell’s evidence. She is very critical of the policy changes which have placed additional pressure on the scarce national resources represented by the LASUs. She says that following the coming into force of the CDA 1998, a number of secure units have complained to the Howard League that they are having to hold children who could be successfully accommodated in a non-secure option. Her office has also received consistent reports from solicitors, secure unit staff and prison officers that in any case the new provision is failing to protect the most vulnerable boys. She says:
“In reality, the system is a lottery. Whether a young man, however deserving, gets a place in a secure unit depends on whether one is available. He may be lucky and arrive at court in the morning when a place can be found but if he arrives in the afternoon when there is no place he will have to go to prison.”
She has told us how in December 1998 the Youth Justice Board said that current experience with bail supervision, remand fostering and “remand rescue” schemes strongly suggested that some secure remands were inappropriate and that these other approaches were effective alternatives. Since that time, she says that the board has used £85 million of its development fund over a 3-year period to promote a plethora of such schemes. She gives an example of one such initiative, run by the Children Society.
She was very critical of the Prison Service’s failure to create truly separate units for girls under the age of 18 following the ruling in ex p Flood. Although she welcomed the establishment of the new juvenile estate overseen by the Youth Justice Board, and accepted that there had been some improvement in the provision of education, training and personal development for sentenced children in some of the YOIs (and she named two, in particular), she said that Mr Hickson’s description provided an overly optimistic spin on the situation: he was describing a regime designed for sentenced children, not for those on remand. She said that the only way that children on remand were able to access that regime was by mixing them with sentenced children, which Mr Hickson himself said was not ideal.
In paragraphs 18 and 19 of her statement Ms Russell said:
“The prison environment for the under 18s still retains unacceptable levels of violence and bullying. In October 2000 HM Inspectorate of Prisons described Stoke Heath YOI [one of the 13 ‘specialist’ juvenile YOIs] as ‘not a safe establishment’. The problems of violence and bullying are likely to continue as staff ratios remain low in comparison to a secure unit. In prisons there will be around one officer for every ten boys, in a secure unit there will be one staff member for every two children. A note of further concern is that children in prisons are not protected by the Children Act 1989 as are children held in local authority secure units.
Reports by the Chief Inspector, the Howard League and other organisations have consistently found that prison is a dangerous and damaging place for children. In 1997 HM Inspector of Prisons concluded in his Thematic Review ‘Young Prisoners’ that no child, regardless of gender, should be held in Prison Service establishments. Over the last eleven years, 20 children have committed suicide in prison, at least seven of whom were being held on remand. Self-harm which involves children cutting [or] attempting to hang themselves is rife, particularly on remand units. Collating accurate figures is extremely problematic. However, most recent figures produced by the Prison Service Safer Custody Group show that between 1998 and 2000 there were 642 serious incidents of self-harm recorded for the age group 15 to 17. The risk of suicide and self-harm is known to be higher for those who are young, on remand or newly sentenced. In recent years there has been one suicide in a [LASU]. Suicide and self-harm are endemic not just because the boys bring with them numerous problems but because remand regimes in particular have tended to be extremely limited, involving little or no education and long hours of being locked up in cells.”
Mr Wise’s argument ran along the following lines:
i) Proximity to home was not the aim of the new policy. It is merely one of the consequences of it. The relevant policy aim was described by the minister who presented what is now the CDA to Parliament when he said “We are working to end the practice of remand for 15 and 16 year olds in adult prisons” [by which he meant YOIs which took offenders up to the age of 21].
ii) Following the decision of this court in ex p Flood (see para 36 above) the Home Office could have established a number of smaller units specifically for young female remandees and offenders. Mr Hickson’s statistics showed that 170 girls under the age of 18 were held in secure conditions on 31 May 2001, so that the creation of seven units with 25 places in each would have fulfilled the need for secure accommodation for girls without objectionable discriminatory effects.
iii) One reason why so little accommodation was available in LASUs for males aged 15 and 16 was that more and younger children are now being accommodated in them. The CDA 1998 introduced for the first time the power to remand children of both sexes aged 12-14 and girls aged 15-16 to secure accommodation. It also introduced Detention and Training Orders for children under the age of 15. If these further policy changes had not been introduced at the same time, a very limited accretion to the LASU estate would have been necessary in order to accommodate both boys and girls placed on secure remand without having to discriminate between them.
iv) Because it would have been unlawful to place girls aged 15 and 16 on secure remand in adult prisons (see ex p Flood) the Home Office cannot rely on the fact that it avoided unlawful behaviour as a justification for its discriminatory policy.
v) There are and never have been any YOIs “designed specifically to cater for boys of 15 and 16”. New wings were created within existing YOIs to conform with the requirements of UNCRC Article 37(c). There is no rational justification available for a policy which involves screening tests for the purpose of identifying vulnerable boys, but no screening tests for girls of the same age.
vi) The fact that Parliament decided that the present arrangements were “the appropriate option to pursue” cannot assist the Secretary of State if the policy is objectionable on Article 14 grounds.
vii) The state cannot sensibly justify the introduction of objectionable discriminatory treatment for boys aged 15 and 16 on resource grounds when it chose at the same time to introduce measures which put added pressure on the secure accommodation estate.
viii) Justification for discrimination on grounds of gender requires particularly cogent reasons. The ECHR is a “living instrument which must be interpreted in the light of present day conditions”, and the consensus of Western European States is firmly in favour of equality of treatment of the sexes. The safeguards provided for in the Convention must be “practical and effective” (see Soering v United Kingdom (1989) 11 EHRR 439, para 87). It would be wrong for this court to enable the state to circumvent the fundamental rights found in the Convention on contrived grounds.
The effect of the Children Act
Except for a single comment by Ms Russell, none of the parties had referred to the provisions of the Children Act 1989 in their submissions or their evidence. We therefore invited the parties to tell us about its effect, and in due course we received the following note, in terms agreed between counsel:
“By its own terms, the Children Act 1989 does not apply directly to the Prison Service (see R(P and Q) v Secretary of State for the Home Department [2001] EWCA Civ at [90] –[91]. However, under section 17(1) of the Act it is the general duty of every local authority “to safeguard and promote the welfare of children within their area who are in need”. Section 17(10) defines the circumstances in which a child shall be taken to be in need, if
(a) he is unlikely to achieve or maintain, or have the opportunity of achieving or maintaining, a reasonable standard of health or development without the provision for him of services by a local authority under this Part;
(b) his health or development is likely to be significantly impaired, without the provision of such services…
These obligations of the relevant local authority in whose area a YOI or prison is located apply with respect to children kept in that YOI or prison (see [2001] EWCA Civ at [97] and [100]-[101]. Thus, it is at least possible that if the relevant local authority is in a position to provide better specialist services than the Prison Service itself could provide (eg with respect to psychological services) the local authority will come under a duty to assess the need of a child in a YOI for such services and provide them.
But in deciding what positive obligations a local authority may have with respect to the provision of services by it, it is entitled (indeed bound) to take into account the limitations upon its resources and other claims upon them: see In re W & B (Children) [2001] EWCA Civ 757 at [60] and section 17(2) of the Children Act.
Further, as to the Prison Service itself, it is relevant to note (a) that it has a legal obligation to safeguard the well-being of children in its care, by virtue of section 6(1) of the HRA and ECHR Article 8; and (b) that the Youth Justice Board has a service level agreement with each YOI, the terms of which are also incorporated in Prison Service Order (“PSO”) 4950, which requires Governors to adopt practices ‘which reflect clearly the principles and good practice required by the Children Act’.
The Youth Justice Board also monitors compliance with PSO 4950 at each YOI, in addition to the inspection arrangements by HM Inspectorate of Prisons. Particular matters addressed in the PSO include, for example, role of staff, selection of staff, staff training, reception into custody, introduction of a personal officer system, involvement of family, supervising officer and outside agencies, dealing with grievances and investigations, education and sentence planning. National Standards for Youth Justice issued by the Youth Justice Board on behalf of the Home Secretary in April 2000 also contain requirements of both the Prison Service and Youth Offending Teams in planning and reviewing interventions.”
We were sent copies of PSO 4950 (“Regimes for Prisoners Under 18 Years Old”) and the National Standards. It was of course impossible to gauge the extent to which the principles set out in these documents have been translated into good practice on the ground, and the claimant sought, without permission, to put in a paper prepared by the Howard League which encouraged us not to adopt too Panglossian a view of these arrangements. Since SR’s only distinct claim in this part of these proceedings is for a declaration that the primary legislation is incompatible with his Convention rights, and the Home Office was not called upon to answer a complaint that the remand regime in fact now provided for a 16-year old boy in a specialist YOI was so significantly inferior to the remand regime provided for a 16-year old girl in a LASU as to amount to unlawful discriminatory treatment, it is not appropriate for us to inquire any further into these matters in the present case. Suffice it to say that if there are in fact significant resource differentials between the two regimes which result in obvious differences in the quality of those regimes, the courts would have to consider any justificatory defence with very great care. After all, these cases are concerned not only with the rights of children, but also with discrimination on gender grounds.
The incompatibility challenge
On the main issue we have to decide, we do not consider that section 98 of the CDA 1998 is incompatible with SR’s Convention rights. Parliament had an invidious choice to make in 1998, and given the particular difficulties in finding appropriate placements for girls of that age to which Mr Hickson has drawn our attention, we find it impossible to hold that the decision to give them preference in the limited accommodation at that time available for remandees in LASUs did not pursue a legitimate objective or was anything other than a proportionate response to the problem.
In a democratic society, if our elected representatives believe that it is desirable or expedient to detain more children, and younger children, in secure accommodation than was previously thought desirable or expedient, that is a choice they are entitled to make. We do not accept the argument that Parliament should have held back in making these legislative changes simply because this would entail boys being placed on secure remand in specialist YOIs and girls being placed in LASUs when otherwise it might have been possible to accommodate them all in LASUs. It must not be forgotten that no child of this age may lawfully be placed on secure remand unless a court is satisfied that the public would be at risk of serious harm if he/she was not so placed (see para 15 above).
When these legislative changes came into force, it was of course the duty of the Youth Justice Board, as a public authority charged with the responsibilities set out in section 6(1) of the HRA, to ensure that the remand regimes for which they contracted in these two different forms of establishment did not violate any of the remandees’ Convention rights (including the rights of boys under Article 14), but this is not an issue we have to determine on the present application. There are, however, features of that part of Ms Russell’s evidence we have set out in paragraphs 98 above which, if true, provide grounds for concern that there is in fact discriminatory treatment as between 15-year old boy remandees and 15-year old girl remandees which might not be easy to justify.
The challenge to the district judge’s decision
In retrospect, the district judge’s decision that SR was not vulnerable, in the sense that he did not fulfil the criteria set out in section 23(5A) of the CYPA 1969 (see paragraph 15 above), appears to have been wrong. Dr Livesey and Dr Randall spoke with one voice on the matter. Dr Livesey said (at para 3.13 of his report):
“… I consider that by dint of his emotional immaturity he possesses such a limited range of coping strategies that he may be at far greater risk of self-harm were he to be placed in a more punitive and stressful environment (he may perceive a YOI to be such). I do not suggest that such behaviour would arise as a consequence of a depressive illness, but rather out of frustration, fear and hopelessness.”
Dr Randall said (at para 8.13):
“While I accept that [SR] is a physically able young man who is less likely than some to be physically intimidated and that his suicidal ideation has abated, there are still strong indications of significant emotional immaturity, I am of the opinion that suicidal ideation is, in his case, significantly stress-related and there is no good reason to believe that it will not re-emerge if he is placed in a stressful environment lacking in the provisions that I have outlined above. This continues therefore to be a risk factor of self-harm.”
If all this evidence had been before the district judge on 23rd May, coupled with the evidence of Mary Reville, it is difficult to think that the contrary opinion from East Moor, after only seven days’ observation, would have dissuaded him from finding that SR qualified for remand to a LASU under section 23(5A). After all, even without this additional expert help the lay justices had been concerned only eight days earlier by the consideration that SR had a lack of inter-personal skills that could lead to conflict with others.
But the district judge did not have this evidence. What he had instead was the unqualified opinion from East Moor, who appear to have been asked to conduct an assessment of vulnerability by the Nottingham youth offending team when they agreed to admit him. In those circumstances, unless there is substance in the point that SR had a legitimate expectation that the district judge would reach the same opinion as the justices, it appears to us to be impossible for a supervisory court to quash the district judge’s decision on the basis that it was clearly wrong at the time he made it. The case does, however, suggest that there is value in having more than one magistrate present on the bench when an issue as difficult and sensitive as the question of the vulnerability of a child as disturbed as SR falls to be considered.
There is, however, no evidence before us that SR was told by the justices on 15th May that his remand status might well be reviewed. We do not know how it came about that East Moor was invited to conduct a re-assessment of his vulnerability. We do not have a written record of what the justices said, and there is no evidence before us that the district judge inquired into this. If a boy of 16 is told by lay justices, who have clearly taken great trouble about their decision, that he is to be regarded as vulnerable for remand purposes, he must have a legitimate expectation that this status will continue until he attends court for sentencing unless he is warned that this status may well be changed at any subsequent remand hearing, or there is some compelling reason for altering his status.
The relevant principles are set out in R v Nottingham Magistrates Court ex p Davidson [2000] 1 Cr App R(S) 167, 171-3 (in a rather different context) and in R v North and East Devon Health Authority ex p Coughlan [2000] 2 WLR 623, 645D-E. The district judge appears to have been aware of this line of authority because he maintains that he found the evidence from East Moor “compelling”. We do not consider that he was entitled to take this course. Evidence based on a mere seven days of observation by the staff at East Moor, who do not purport to have the psychological expertise to assess accurately whether a very disturbed boy of 16 is emotionally immature, could not properly overturn the weight of the evidence before the justices on 15th May (which included Dr Withecomb’s expert report), the justices’ assessment of that evidence, and the weight of the evidence given by Mary Reville whose office had very long experience of this child. A judicial determination that a boy of 16 is of such emotional immaturity and/or possesses such a propensity to harm himself that it would be undesirable for him to be remanded to a prison should not be lightly set aside in the absence of expert evidence of the type mentioned in paragraph 3.20 of the Home Office Guidance.
We have not overlooked the fact that the district judge also relied on the fact that he was not notified that secure accommodation was available for SR, so that the condition set out in section 23(4)(a)(ii) of CYPA 1969 (as amended) was not fulfilled. The only evidence before him on this matter was that it had apparently been agreed with East Moor that SR would not be returned to them and that the youth offending team did not consider that he fulfilled the statutory criteria set out in section 23(5A). It is for the courts, not for the youth offending team, to decide whether those criteria are satisfied. Once the district judge had decided that he could not properly depart from the justices’ earlier finding, whatever his own view on the matter, then it was incumbent on him to order further inquiries into the availability of some other LASU. After all, a child’s life and well-being might be at risk.
For these reasons we dismiss the application for a declaration of incompatibility. Although we will hear counsel on the form of the relief we should grant, we would at present be disposed simply to quash the order of the district judge by which he committed SR on secure remand to Onley YOI. No other relief appears to be needed, since events have now moved on.
Addendum
After this judgment has been prepared for delivery at the start of the new legal term the court received a further witness statement from District Judge Harris. In this statement, copies of which were sent to all the parties, he said that he wished to provide the court with information and documents made available to him after the hearing in this court ended, and to invite us to make a ruling on the proper construction of section 23(4)(a)(ii) of CYPA 1969, as amended.
The later history of this matter is not, of course, relevant to the issues we were called upon to decide. It can be summarised in this way:
(1) On 30th July 2001 District Judge Harris said in court that he had formed the provisional view that he might make a community rehabilitation order with a condition of psychiatric or psychological treatment. He invited the council to seek an order under section 25 of the Children Act authorising it to keep SR in secure accommodation;
(2) SR was thereupon remanded to a YOI, because no place in a LASU was available. On 1st August 2001 Dale House LASU at Blackpool admitted him unwillingly;
(3) On 9th August the district judge was told that no LASU was prepared to admit SR so that he could receive the long term therapy recommended by Dr Livesey and Dr Randall. Because the council wished to make further inquiries, the case was adjourned to 16th August;
(4) On 14th August SR appeared before Wyre Youth Court charged with offences at Dale House LASU, which refused to have him back. No other place in a LASU was available for him, and he was remanded in secure custody to Lancaster YOI until 21st August, when he admitted assaults on residential social workers at Dale House on 8th and 12th August 2001 respectively. The case was remitted to Nottingham Youth Court for sentence.
(5) On 16th August SR appeared before District Judge Harris. He was told that no place was available for him in a LASU, and it seemed to him that no place in a LASU was ever likely to be available. The council had also been unable to locate any other suitable organisation which was prepared to accept him. The case was adjourned until 6th September partly for inquiries to be made of Dr Livesey and Dr Randall and partly to accommodate SR’s solicitor’s holiday arrangements. SR was remanded in secure custody to Onley YOI.
(6) On 6th September the district judge imposed a 12 month community rehabilitation order on SR, without his consent, subject to a condition that he should receive out-patient psychiatric or psychological treatment under the direction of a consultant child and adolescent psychiatrist at a centre in Nottingham. He was told that no place in a LASU was available to SR. In particular the Nottinghamshire LASU would not accept SR under a section 25 order because he did not fit its vulnerability criteria. Because SR had already spent on secure remand the equivalent of a nine and a half month sentence, the district judge rejected the idea of a detention and training order (“DTO”). The effective term of such an order would have been substantially reduced because of the time spent on secure remand, and under a DTO he would not receive the therapy required to meet his needs. The district judge warned him that the imposition of a DTO would follow any breach of the conditions of the community rehabilitation order.
(7) Shortly after 6th September SR committed further offences, and on 13th September a differently constituted bench sentenced him to a 12-month DTO.
As to the interpretation of section 23(4)(a)(ii) of the CYPA 1969 (for which see paragraph 14 above), if a court is told that despite extensive inquiries no place in a LASU is available for a boy of 15 or 16 whom it wishes to send to a LASU, because it is of the opinion that it would be undesirable for him to be remanded to a remand centre or prison by reason of his physical or emotional maturity or a propensity of his to harm himself (for these criteria of vulnerability see paragraph 15 above), then the court has no power to remand such a boy to a LASU.
We see no reason, in the light of the district judge’s later statement, to alter what appears in paragraph 111 of this judgment. In particular, we wish to stress that it is for the youth court to determine on the evidence before it whether the statutory criteria in section 23(5A) are fulfilled. It is not for a youth offending team (or the Youth Justice Board) to substitute its own judgment on these matters for that of the court on whom Parliament has imposed the responsibility for making these anxious decisions. If, however, a court is told, following inquiries made in good faith, that no LASU in the country is willing or likely to be willing to admit on secure remand a boy which it has categorised as vulnerable, then the statutory criteria for admission to a LASU cannot be fulfilled. In particular a court has no power to require a LASU to accept on secure remand a boy of 15 or 16 who does not satisfy its admissions criteria.
Because the language of section 23(4)(a)(ii) permits no other interpretation, we did not consider that it was necessary to reconvene the hearing in order to receive further submissions in relation to the situation which developed after the hearing was concluded.
Finally, we draw attention to extracts from two of the later pre-sentence reports which the district judge sent to us:
i) “In my opinion SR is likely to remain a significant risk to the public until he is able to respond to the sort of therapeutic input he needs within a structured supportive environment, as identified by Dr Randall in his report” (9th August 2001).
ii) “[SR’s] conduct in custody over the past three weeks … reinforces the impression that he copes well with custodial situations in which he is less likely to receive the intensive intervention that he needs, while responding very negatively in secure units that would otherwise be able to offer that intervention” (6th September 2001).
It is a matter of regret that it was not open to the district judge on 6th September to make an order which would have enabled this potentially dangerous young man to receive the long-term therapy he urgently needs to receive in a secure setting. Unless and until he receives such therapy, he is likely to continue to be dangerous.
LORD JUSTICE BROOKE: Mr Justice Newman is away on leave and is unable to be here today. For the reasons set out in the judgment of the court, copies of which have been made available to the parties, this application is allowed to the extent set out in the judgment.
MR WISE: May I thank the court for the comprehensive and very carefully considered judgment in this case.
LORD JUSTICE BROOKE: Even if half of it is wrong.
MR WISE: Nevertheless, clearly the judgment has had a great deal of detailed attention given to it and of course all parties are grateful to the court for that. Your Lordship should have the note which I ----
LORD JUSTICE BROOKE: Yes, we were very grateful. I have had the opportunity of discussing it with Mr Justice Newman.
MR WISE: That is most helpful, my Lord. May we take the orders sought to start with. The first order sought is a quashing order with respect to the decision of the district judge on 23rd May, which your Lordship has indicated is the appropriate form of relief.
LORD JUSTICE BROOKE: Yes.
MR WISE: The second order sought is a certificate that the proposed appeal raises an issue of general public importance.
LORD JUSTICE BROOKE: Let us come back to that. Let us come back to 3 and go to 4 and 5.
MR WISE: I have discussed the issue of costs with my learned friend before the court sat, my Lord. He is content that the central fund bear half of the claimant's costs in recognition of the split decision, effectively, and one would agree with that. One sees the sense and propriety of that. So may I invite your Lordship to make an order that half of the claimant's costs be borne by central funds.
LORD JUSTICE BROOKE: But are you legally aided?
MR WISE: Yes, my Lord.
LORD JUSTICE BROOKE: In another matter we sought to make an order that a legally aided bill should be borne by central funds and a senior costs judge drew my attention to a very recent provision which does not enable that to be done. Central funds does not come in to cover what is being paid for by the Legal Services Commission.
MR WISE: I am not aware of that provision, my Lord.
LORD JUSTICE BROOKE: Nor was I until the senior costs judge pointed it out. I imagine Mr Sales would know all about it.
MR SALES: I wish that I did, my Lord, but I have to confess ignorance.
MR WISE: Certainly that is what happened in the Davidson case that your Lordship refers to in the judgment.
LORD JUSTICE BROOKE: I am afraid I do not have it at my finger tips.
MR WISE: Of course one is seeking the costs out of the public purse in any event, but one is conscious of defending the legal aid fund's resources.
LORD JUSTICE BROOKE: I know. This is the reason we made the order that we did in the other case, but we were told, when a query arose out of it, that it was a mixed funding and we were asked to make sure that the client's own contribution came out of central funds. We made an order for the whole shooting match to come out of central funds and we were told by a senior costs judge, when the problem arose and the solicitor wanted to tax his legal aid costs, that we could not make the order in the form that we had originally made it.
MR WISE: If your Lordship made the order in the alternative in any event, that there be a detailed assessment of the ----
LORD JUSTICE BROOKE: I will certainly make the order under 5.
MR WISE: If your Lordship made the order under 4 in any event and then it transpired that ----
LORD JUSTICE BROOKE: We are not entitled to make the order under 4 in any event because at the moment my understanding is - and Master Hurst knows a great deal more about these matters than I, you or even Mr Sales - that Parliament has by statutory regulation recently protected public funds - central funds - to the extent that, if there is a legal aid certificate, it appears that the funding is to be paid from Legal Services.
MR WISE: If that is the case, my Lord, may we just leave it at an order for the claimant's CLS funding.
LORD JUSTICE BROOKE: I think that would be better. That was the clear message from the advice that I got only a few weeks ago. You will have 5.
MR WISE: My client is not prejudiced in any way by that in any event, of course.
LORD JUSTICE BROOKE: No. Going back to 2, Mr Sales, do you have any observations you wish to make on this?
MR SALES: 2, I am neutral.
LORD JUSTICE BROOKE: I thought you would be.
MR SALES: I leave it to the court. I do have observations on 3.
LORD JUSTICE BROOKE: I do not suppose Mr Wise's observations will be particularly long on 3. I am unhappy about where you are going off to on 4. If you are saying there is a duty of the court under the Human Rights Act, when the matter is completely academic, the court has no evidence that it should go off instituting an inquisitorial inquiry and getting a lot more evidence to prolong the hearing, when a hint has been given that the matter could usefully be litigated on some other occasion on proper evidence from both sides. I do not think the House of Lords would be terribly excited by that particular caper.
MR WISE: Your Lordship may well be right, but there are of course alternative grounds on which we seek leave.
LORD JUSTICE BROOKE: I am only picking up 4. My strong impression is that the House of Lords would be remarkably unenthused by that. There is no evidence at the moment.
MR WISE: Save for this comment, my Lord: it does form a necessary part of the background to the case.
LORD JUSTICE BROOKE: It may be part of the background, and it may be an argument which was admissible on the incompatibility of primary legislation with the Convention, but the idea that, without any notice at all, even if you failed on that, you could succeed on a secondary ground of attack, seems to me to be unpromising material for the House of Lords.
MR WISE: Your Lordship may be correct on that point.
LORD JUSTICE BROOKE: What is the issue that you want to have certified?
MR WISE: The question, put very shortly, my Lord, is this. May I adopt your Lordship's formulation from the opening paragraph of your Lordship's judgment. Can we take paragraph 1. Your Lordship will see the second sentence that begins on the fourth line of the first paragraph: "SR also seeks a declaration ----" Pausing there, if one inserts "whether", the question is "whether section 98 of the Crime and Disorder Act ----" and to the end of the paragraph.
LORD JUSTICE BROOKE: Mr Sales, do you have any observation on that formulation?
MR SALES: No, not as a formulation.
MR WISE: That seems succinctly to set out the issue.
LORD JUSTICE BROOKE: We will be inclined to give you your certificate, Mr Wise.
MR WISE: I am much obliged for that indication, my Lord. The next order sought is for leave to appeal, as your Lordship sees. The points are set out in the note. There is probably no merit in going over them again, unless there are any matters I can assist your Lordship with.
LORD JUSTICE BROOKE: We need not trouble you, Mr Sales. We are both of the view that this is not an exceptional case on which we should grant permission. It is very much a matter for their Lordships.
The court is extremely grateful to counsel for their assistance in this difficult case.
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