Before : THE HONOURABLE MR JUSTICE HOOPER

Transcription

1 Neutral Citation Number: [2004] EWHC 13 (Admin) IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT Before : Case No: CO/1530/2003 Royal Courts of Justice Strand, London, WC2A 2LL Tuesday 20 th January 2004 THE HONOURABLE MR JUSTICE HOOPER Between : The Queen on the application of D.T. - and - Secretary of State for the Home Department Claimant Defendant Mr Ian Wise (instructed by Mr Callender, Law Department Howard League for Penal Reform) for the Claimant Mr Steven Kovats and Miss Jenni Richards (instructed by the Treasury Solicitor) for the Defendant Judgment

2 Mr Justice Hooper: Introduction 1. This application for judicial review concerns the lawfulness of the detention of the claimant when, whilst aged 16 years, she was detained from 28 June 2002 until 13 May 2003 at H.M.P Eastwood Park. 2. It is submitted on her behalf that the defendant acted unlawfully in ordering her detention in Eastwood Park and that it is unlawful for the defendant in exercising his powers under section 92 of the Powers of Criminal Courts (Sentencing) Act 2000 ( the 2000 Act ) to place any under 18 year old in prison with prisoners over the age of 18 years (except in exceptional circumstances). It is submitted that the defendant acted unlawfully in that he acted contrary to his own policy as set out in PSO 4960 and contrary to Article 8 of the ECHR, Article 37(c) of the United Nations Convention on the Rights of the Child (UNCRC) and Article 10(c) of the International Covenant on Civil and Political Rights. It was agreed by Mr Wise that the latter Convention could be disregarded for the purposes of this case in the light of the UNCRC. 3. The relief sought is a declaration that the claimant s detention was therefore unlawful and, if successful and at a separate hearing, damages. 4. Eastwood Park is a prison located between Bristol and Gloucester designed to hold 328 female prisoners. It holds prisoners who are 21 and over and, like three other women s prisons, also holds prisoners (or detainees as they are also called) under the age of 21 whose residential accommodation is in a separate wing. At Eastwood Park that is D wing. The accommodation on D wing, where the claimant s cell was located, is designated as part of a young offender institution ( YOI ) within the prison estate and thus, the Governor Mr Timothy Beetson states (2/406) accordingly not part of the adult prison (see sections 33 and 43(5) of the Prison Act 1952). Section 33 gives the Secretary of State the power to and section 43(5) sets out that all but two provisions of the Prison Act subject to such adaptations and modifications as may be specified in rules made by the Secretary of State. The regime for YOIs is regulated by the Young Offender Institution Rules 2000 (SI 2003/2271), which make some special provision for juveniles, and not by the Prison Rules (SI 1999/728). 5. It houses prisoners on remand, prisoners sentenced to detention and training orders ( DTOs ) and those, like the claimant, transferred under section 92. Those aged under 18 normally have their own cells on the wing (see 2/406). Whilst on the wing and not in their cells those under 18 mix with the over 18s (see the daily routine at 2/410). Whilst taking part in education classes, skills training and courses those under 18 may mix with fellow prisoners of any age. 6. By virtue of section 43 of the Prison Act 1952, the Secretary of State may provide, amongst other things: young offender institutions, that is to say places for the detention of offenders sentenced to detention in a young offender institution or to custody for life. Although the claimant fell into neither of these categories she was ordered by the

3 defendant to be detained in HM Prison Eastwood Park (RLM 2/26) and allocated to D wing. 7. The application for judicial review is supported by Frances Crook, the Director of the Howard League for Penal Reform and the application is brought on the claimant s behalf by Mr Chris Callender, a solicitor with the Law Department of the Howard League. 8. The matter was listed before me for hearing on June with a time estimate of two days including delivery of the judgment. That turned out to be an unrealistic time limit and, in any event, the Secretary of State understandably wished to rely upon further evidence, which was served in mid-july. The case was due to be heard in July but the hearing date was vacated following an application by the defendant. The hearing was then listed for 26 and 29 th September Chronology 9. The claimant was born on 3 June 1986 and was aged 15 when, on 9 November 2001 at the age of 15 she committed a very serious aggravated burglary (a summary of the evidence may be found at 2/513) with a 19 year old male. Three days later she was remanded in custody to Stamford House, a local authority secure children s home ( LASCH ) run by Hammersmith and Fulham Borough Council. LASCHs were formally known as local authority secure units (LASUs). There are just over 300 beds in some 30 local authority run LASCHs available for those under 18 sentenced to some form of custodial detention or remanded in custody. 10. The claimant had a previous conviction for burglary committed at the age of 14 and a very disturbed background (see Pre-sentence Report prepared in July 2001, 2/508). On 11 February 2002, the claimant was sentenced to three years detention under section 91 of the 2000 Act. 11. Section 91 provides that where a person aged under 18 is convicted on indictment of certain serious offences, aggravated burglary being one of them, then:- (3) If the court is of the opinion that none of the other methods in which the case may legally be dealt with are suitable, the court may sentence the offender to be detained for such period, not exceeding the maximum term of imprisonment with which the offence is punishable in the case of a person aged 21 or over, as may be specified in their sentence. 12. The predecessor to this section was section 53 of the Children and Young Persons Act 1933 ( CYPA 1933 ). Section 91 needs to be read against the background of sections 89 and 92. Section 89 provides in sub-section (1) that no court shall pass a sentence of imprisonment on a person for an offence if he is aged under 21 when convicted of the offence. Sub-section (2) permits the committal to prison of a person aged under 21 who is being detained in custody pending his trial or sentence.

4 13. Section 92 provides that a person sentenced to be detained under sections 90 or 91: (1) Shall be liable to be detained in such place and under such conditions: a) as the Secretary of State may direct; or b) as the Secretary of State may arrange with any person. 14. Section 90 provides that, where a person convicted of murder is under 18 at the time the offence was committed, the court shall sentence him to be detained during Her Majesty s Pleasure. 15. Sub-section (2) of section 92 provides that a person detained pursuant to sub-section 1 shall be deemed to be in legal custody. 16. Sub-section (3) provides that a direction may be made under the hand of an authorised officer. 17. In the case of the claimant, for the purposes of section 92, the authorised officer was Mr Ronald Le Maréchal (see RLM 2 at 26). He is the head of the Children Services Unit which is part of the juvenile group within H.M. Prison Service Headquarters. He is in charge of what is called the section 92/53 Unit in the Juvenile Group and has been so since January of The figure 92 in the name of the group refers to section 92 of the 2000 Act and the figure 53 refers to section 53 in the CYPA In anticipation that the claimant might be found guilty at her trial and sentenced to a period of detention pursuant to section 91, the Section 92/53 Unit had to consider what would be an appropriate placement for her. It was decided that if a section 91 order were to be imposed, the claimant should remain in a LASCH. Amongst the material taken into account was a document written by a Youth Offending Team ( YOT ) worker, indicating that the claimant was vulnerable. (See paragraph 9 of the first statement of Mr Le Maréchal, 2/502). A note on the file of 92/53 Unit states: Because of her age/gender, she will automatically go to a LASU (2/519). 19. Following her sentence on 11 th February 2002 and pursuant to section 92 of the 2000 Act, the claimant, still 15, was returned to Stamford House. A detailed letter was sent to the Centre Manager, Mr Tony Goring (see 2/517). The letter set out various requirements and stated that the Youth Justice Board would meet the cost of the placement. The YJB was established by section 41 of the Crime and Disorder Act On 20 April 2000 it took over responsibility for the juvenile secure estate (see section 41(5)(i) of the 1998 Act and the Youth Justice Board for England and Wales Order 2000 (SI 2000/1160)). In this capacity, the YJB is responsible for the commissioning and purchasing of places across the juvenile estate, of which the Prison Service is the largest supplier with about 2,900 places.

5 20. Shortly after being sentenced on 11 February 2002, the claimant s case was reviewed by the Section 92/53 Unit. The following note dated 26 February 2002 appears in the records based, according to Mr Le Maréchal, on information received from Stamford House:- Objectives set include work around victim awareness, anti-social behaviour, drug misuse and social, family and pier relationships. Although on admission [DT] managed to attain level 3 on the Unit s incentive scheme, her behaviour declined dramatically and she was placed on a behaviour management course, to address her bullying and attitude towards staff. In view of the need for secure beds in the local authority system, it is my recommendation that [DT] be considered for a transfer into the penal estate. She does not display any aspects of vulnerability and will be 16 years of age in June (2/503 and 523, underlining added). 21. On 22 April a recommendation was made by a member of the unit to Mr Tanner that DT be considered for a transfer into the penal estate for the reasons contained in the 26 February note. Mr Tanner agreed and Mr Le Maréchal wrote a letter on that same date to Stamford House. The letter related to two detainees at Stamford House, the claimant and one other, a male. I set out the letter, making the necessary changes to conceal the identity of both the claimant and the other detainee whom I shall call X. The letter reads (2/526): I am writing to alert you to the possibility that the above named Section 91 detainees may need to be transferred to the Prison Service juvenile estate at short notice over the coming weeks. 22. At this time the claimant was still only 15. The letter continues: The background to this is the decision, announced by the Home Secretary last week, to implement the legal provision giving courts the discretion to order secure remands in respect of some years olds. As part of its strategy for dealing with the consequential secure accommodation implications I have been asked to consider whether any Section 91 detainees who are aged and are currently held in the LASUs and STC [secure training centres holding those sentenced to DTOs] might appropriately be moved to the prison service, where additional places are to be made available. Needless to say, all the Section 90/91 offenders aged 15 and above who are held in LASUs/STCs have been there for a good reason, otherwise I would have already placed them in Prison Service custody. At the same time, the justification for a LASU/STC placement is stronger in some cases than in others and I must now be more selective. For example some have been there simply because they were under 15 but have now reached

6 their 15 th birthday. I have therefore looked carefully at each individual case taking account of age, nature of offence, sentence length, education and other needs and all other relevant factors, and have concluded that the above named are among those who could more appropriately be moved to the prison Services should the need arise. I hope, of course, that I will not have to direct an early move, but, if I do, you may be assured that I will give very careful thought to the choice of destination so that [X], and [the claimant], the young people concerned are, as far as possible, placed in an environment that provides continuity and enables them to build on progress made. I am also looking at other individual cases and we may have to add others to those who may have to move on depending on pressure within the local authority Estate. Finally, if there are compelling reasons why you think an individual should not move can you please let me know these reasons by 12 noon on 23 rd April (Underlining added) 23. It is Mr Wise s submission that the letter, and in particular the underlined passages, show a presumption in favour of prison for those aged Absent a good reason or compelling reasons, they will be sent to a prison, so he submits. 24. Mr Le Maréchal explains the pressures on the then available accommodation for the secure detention of those under 18. He writes (paragraph 8 of his witness statement, 2/501):- 8. Whilst placements are reviewed whenever there is a significant change in the circumstances of an individual detainee, the practice has grown up of the Section 92/53 Unit and the YJB reviewing all placements on a quarterly basis to ascertain whether or not it is possible and appropriate to transfer detainees to Prison Service accommodation in order to free up accommodation in LASCHs and STCs for more vulnerable detainees. Such reviews may exceptionally also be undertaken at other times in response to immediate pressures in the juvenile estate, although this has only happened formally on one occasion, namely following the announcement by the Secretary of State in April 2002 of the implementation of the legal provisions giving courts the discretion to order secure remands of some years olds. At this time there was already pressure on accommodation because of the street crime initiative. This was the reason why the claimant s case was exceptionally reviewed in April 2002 following a normal quarterly review in February The claimant s case would have been reviewed again in any event in May 2002.

7 25. As Mr Kovats said in the course of argument the decision to move the claimant to the prison service juvenile estate was driven by shortage of space in LASCHs and STCs. 26. Further confirmation of this comes from part of paragraph 15 and from 26 of the witness statement of Frances Crook (1/115): On review of the statistical information available to me it seems clear that the secure accommodation places are being taken up by younger children and forcing the Home Secretary to place 15, 16 and 17 year old girls in prison service accommodation contrary to his policy. 26. In light of the information available it seems that the increase of custodial sentences and custodial remands for children 15 years and under has caused an increase in demand for beds in local authority secure children s homes. As a result there has been a decline in the supply of beds for children, and in particular girls, aged years. In the circumstances the prison service and YJB have made placement decisions on the basis of the supply of beds, rather than the individual needs of the child, to increasingly accommodate 16 and 17 year old girls in prison service accommodation. 27. On 23 April 2002 Mr Tony Goring, the Centre Manager wrote to Mr Le Maréchal confirming that there were no known reasons why X and the claimant could not be removed from Stamford House under the circumstances you describe, should this become necessary. 28. On 24 April the claimant s Youth Offending Officer, Frances Jones, based with the Worcestershire & Herefordshire YOT wrote a note to Sharon Cummings of the Section 92/53 unit in which she said that she understood (the defendant says misunderstood) from speaking to the manager of Stamford House that, unless there were obvious welfare issues or concerns, older people would automatically be relocated to YOI (2/529). In her note, she asked that the claimant should remain at Stamford House until she had sat the five examinations for which she was registered. Once she had completed her exams, I think [the claimant] would benefit from a transfer. The note continues: [The claimant s] parents have relocated to Newquay in Cornwall. They have repeatedly requested that their daughter be transferred to a custodial placement geographically closer to themselves, in order to facilitate more frequent physical contact between [D] and themselves. However [the claimant s] parents do not want her education and in particular any possibility of her being able to achieve any academic qualifications to be affected. Once more I feel that I need to emphasise the fact that any transfer of [the claimant] to another custodial placement before

8 she has sat her exams would have a severely negative effect upon her welfare. 29. In her witness statement, Frances Jones describes meeting the claimant on 23 April and refers to the fact that the claimant reiterated her desire to leave Stamford House, although on this occasion her immediate concern was the difficulties she was then experiencing with her schoolwork. After discussing the matter with her the claimant agreed to stay at Stamford House until she had taken her exams and it was for that reason that she wrote the note of 24 April. 30. Frances Jones further states that on 22 May 2003 she reviewed the file and noted from the assessment and review prepared by Stamford House staff that the claimant was being disruptive at the unit, by displaying manipulative and overt bullying towards her peers. Frances Jones writes in her witness statement: In the light of this, the claimant s wish to leave Stafford House once examinations were completed and her father s desire that she be placed in an establishment, would facilitate visits, I made enquiries about alternative establishments. I concluded that the obvious alternatives were the Atkins Unit [in fact the Atkinson Unit], a local authority secure children s home in Exeter, or the young offender wing at H.M.P. YOI, Eastwood Park, near Bristol. 31. There are at the present time three secure training centres, privately run, which may accommodate girls below the age of 18. The three secure training centres are located geographically a long way from Cornwall where the claimant s parents had moved. 32. In her assessment of the claimant prepared at about this time (2/546), Frances Jones described the claimant additionally as although not appearing vulnerable: She gravitates towards persons with a stronger presence/character than her own, this in turn leaves her exposed to vulnerable to risky situations (sic). She describes the claimant as having low self-esteem which leaves her open to the suggestions of others. Mr Wise relies on this and similar assessments to show the dangers of placing the claimant in prison with those aged over 18 and submits that in the defendant s contemporaneous records and in the witness statements, her vulnerability has been underestimated. He points to the Eastwood Park induction record, where it states on information from Stanford House apparently: Vulnerable- does gravitate towards strong personalities liable to be led astray. However, there is a tick in the Not vulnerable box (2/438). A similar comment can be found in a YJB document dated 26 February 2002 (2/470). 33. The assessment continues:- However, if placed in a situation with others whom she views as a less dominant character, she then takes the dominant role using the characteristics which she has picked up from others. This has been observed by staff and noted. Thus deterioration

9 on the Unit and being placed on a behavioural management programme. 34. On 23 May 2002 Frances Jones wrote again to Sharon Cummings. The note (2/531) reads in part: [The claimant] is due for release on 11 May She then plans to return to live with her parents who recently moved to Newquay in Cornwall. At [the claimant s] last review, it was decided that once [she] completes her GCSE s (her final exam is on 25 June 2002) we would request that she be transferred to a custodial unit nearer to her parents as they are finding it extremely difficult to visit her regularly. I understand there is a YOI facility in Bristol and the Atkins Secure Unit in Exeter which both accept females. [The claimant s] parents have stated that they would find it a lot easier to visit either facility. In view of the above information, I would like to formally request the transfer of [the claimant] to either facility after 25 June On 28 th May commenting on the memorandum from Frances Jones and the reference to a transfer to the Atkinson Unit, one of the members of Mr Le Maréchal s group wrote that such a move was obviously not appropriate. In response to that note Mr Janner confirmed there is no question of a transfer to the Atkinson Unit. So far as I am aware, [the claimant] will transfer to the prison estate as soon as possible after 25 June. (2/522). Mr Wise relies on this summary and unreasoned dismissal of the Atkinson Unit alternative. I set out in paragraphs 38 and 40 below the explanation givens by Mr Le Maréchal now in his witness statement for rejecting the Atkinson Unit. 36. Frances Jones met the claimant again on 20 th June and she told me that she was quite looking forward to the move as she was by then the oldest female at Stamford House, there was an 18-month gap between the claimant and the next youngest resident, and she was finding the regime increasingly boring. (2/540). According to the claimant, when she arrived at Stamford House, there were a few older girls including a 17 year old and one who had just turned 18. Residents of a similar age group had later been released or moved out (see 1/106). According to Frances Jones, the claimant was aware that she was going to be moved to Eastwood Park but neither she nor her father expressed any concerns about it. 37. On 25 June 2002, the Mr Le Maréchal signed an order directing the claimant s removal to Her Majesty s Prison, Eastwood Park. (RLM 2/26)

10 38. The claimant was moved there on 28 June. She states that she had no idea that they were thinking of sending me to a prison. She says that she was told on 24 June that she was going to Eastwood Park (1/ ). She first realised that she was going into a prison when she saw the high fences and gates and met officers dressed in uniform, following which she was strip-searched and put in Delta Wing (1/103). 39. As to the move Mr Le Maréchal writes in his first witness statement (paragraph 14, 2/504):- 14. The Section 92/53 Unit noted that the claimant would be 16 on completion of her exams. She would be nearly 17 on completion of the custodial part of her sentence. There was evidence that she had bullied other children, but little evidence that she was herself vulnerable. In all the circumstances, we opted for Eastwood Park, rather than the Atkinson Secure Unit. Whilst I recall that the pressure on juvenile secure accommodation had eased a little by that time, even if such pressure had not existed at all, I would have questioned the wisdom of leaving the claimant in an environment where children below her own age were accommodated, and where any bullying by the claimant could have been detrimental to their safety and well being. This was the reason why we concluded that the Atkinson Secure unit was not appropriate. Having therefore considered carefully all the circumstances of the case, the movement order was signed on 25 June 2002 [RLM 1 page 25]. The claimant arrived at Eastwood Park on 28 June I am satisfied that a move from Stamford House was not contrary to claimant's best interests particularly in the light of the closer proximity to her parents. 40. In a second statement dated 20 June 2003, Mr Le Maréchal refers to other documents emanating from the YJB and Stamford House which he said the Unit would have taken into account. Mr Kovats accepted that Mr Le Maréchal could not say whether any individual documents were or were not taken into account, only that they were on the file. 41. Mr Le Maréchal s second statement continues: 4. I would also add that the whole purpose in my writing to Stamford House on 22 April 2002 [RLM 1 page 19 to 20] was to elicit whether there was any reason why the claimant should not be moved to prison service accommodation. I would stress in this respect that, so far as vulnerability of a detainee or other special circumstances are concerned, the Section 92/53 Unit relies heavily on information provided by the current (and, if relevant, previous) secure establishment and the detainee s Yot worker. In the period of nearly 6 years during which I have been responsible for placement and transfer decisions for section 92/53 detainees, it has very rarely been the case that both the

11 establishment and the Yot worker have taken the view at the outset that there are no reasons why a transfer to prison service accommodation should not proceed. Had there been any concerns that the clamant was vulnerable or would be at risk or would be unable to cope in a Prison Service establishment such that a transfer to Prison Service accommodation would be inappropriate for her, Stamford House or the Yot worker would have raised those concerns. In the instant case, however, apart from the Yot worker s request that any transfer should be delayed until after the claimant had finished her GCSE exams, no reasons were put forward as to why a transfer would not be appropriate. Against this background, the claimant appeared to be a particularly suitable candidate for a move in order to ensure that there would be much less risk of her bullying. 5. It has been suggested that I should have considered transferring the claimant to another LASCH. Whilst (assuming a place had been available, whether at the Atkinson Unit or another LASCH) this could (depending on the location of the LASCH) have facilitated family visits, it would not have freed up a space in the local authority secure estate for a more vulnerable girl, nor would it have addressed my concerns about bullying (paragraph 14 of my first statement refers). 6. In reaching the decision to transfer the claimant, I was conscious of not only her best interests but also those of other detainees and, in particular, the best interests of the much younger detainees held at Stamford House (and any other LASCH). Such detainees can be as young as 10; although there are considerably more 12 and13 years olds. The claimant increasingly appeared to have little in common with those she was detained with and this may well have led to the bullying and disruptive behaviour. In the circumstances it also appeared to be in the best interests of the claimant to move from Stamford house to a more mature environment which was more convenient for family visits. 42. In his third statement Mr Le Maréchal states that he applied the same criteria as set out in Mr Minchin s second statement and used by the YJB to conduct the same exercise in relation to those serving a DTO as Mr Le Maréchal conducted in relation to section 90/91 detainees. Mr Minchin sets out detailed written criteria (see pages 3, 7 and following of the documents attached to the second statement). Mr Le Maréchal does not mention in his earlier statements that his Unit applied the detailed criteria set out by Mr Minchin. Although the YJB Secure Facilities Placement Guidance to which I refer below states in paragraph 1.19 that the Prison Service will consult with the YJB placement team in making placement decisions (1.19, 2/338), I do not believe that there is any evidence that that occurred in this case.

12 43. In the acknowledgment of service, the defendant summarised the reasons for the transfer in paragraph 6 (1/43): In deciding on the appropriate placement, Juvenile Unit noted that DT would be 16 on completion of her examinations and would be nearly 17 on completion of the custodial part of her sentence. There was evidence that DT had bullied other children, but little evidence that she was herself vulnerable. There has never been any evidence of self-harm. In all the circumstances, and bearing in mind the need to free up places in LASUs for high priority cases, juvenile unit decided that DT should be placed in Eastwood Park. In paragraph 13 it is said that Prison Service Order 4960 (to which I turn later) contemplates that in exceptional circumstances juvenile girls will not be placed in LASUs and that for the reasons set out in paragraph 6: DT s case is exceptional. 44. Mr Le Maréchal also writes that, after the issue of the judicial review proceedings in March 2003, he decided that to move the claimant from Eastwood Park at that late stage of her period in detention would have broken continuity and would have been unlikely, in my view, to have been in her best interests (paragraph 15 of first statement, 2/504-50). Some figures 45. Mr Le Maréchal in his third statement (paragraph 2 and following) wrote that, during the period April to July 2002, his Unit examined the files of 21 girls aged serving sentences under section 90/91 in a LASCH or STC and only 3 were transferred to prison for reasons connected with the pressure on places. By August the pressure on places had considerably eased (paragraph 8). Mr Le Maréchal was unable to give the figure for boys. 46. Whereas under section 92 of the 2000 Act it is the Secretary of State who decides where a person sentenced under sections 90 or 91 is detained, in respect of DTOs that decision is made by the Youth Justice Board in accordance with the YJB Secure Facilities Placement Guidance (2/333). This document sets out the priorities for places outside the Prison Service (1.15, 2/337) and states that where there is insufficient non-prison Service accommodation, difficult decisions about degrees of vulnerability [described as the key factor in 3.02] may have to be taken to achieve the fairest and safest allocation of places (3.03, 346). The need to achieve a more local placement is also important (4.21, 2/350). Mr Minchin, as Head of Placement at the YJB, describes in his second statement (paragraph 5) being asked in April 2002 by the Head of the Home Office Juvenile Offenders Unit to identify year olds serving DTO sentences who could safely be relocated to prison accommodation to free up beds in LASCHs and STCs as it was thought by the Unit that the courts would make more court ordered secure remands on young persons between years as a result of the street crimes initiative and the implementation of section 130 of the Criminal Justice and Police Act 2001:

13 Extention of Criteria for Juvenile Secure Remands. By virtue of section 41 of the Crime and Disorder Act 1998 it is the duty of the Youth Justice Board to secure accommodation for the purpose of detaining persons in respect of whom a detention and training order is made. 47. He describes how the task was approached and carried out. Of the 23 girls aged 15-17, none were transferred, 20 being categorised as difficult to move and 3 impossible. Some of those could not be moved because of insufficient space within the female prison estate. Out of a total of 78 boys, 22 were moved to prison between April and July Mr Minchin also produced in his second statement figures to show the numbers of under 18s in prison during this period, whether sentenced or on remand. The figures for the April to October periods 2002 show a substantial increase in the number of under 18s in prison from an average over the preceding 9 periods of about 2300, to 2581 in April, 2650 in July and 2704 in October dropping off to 2383 by January 2003 (Chart 4). Of these most are males who are housed in accommodation which is separate from accommodation housing those aged 18 and over. Only a very small proportion are females (Chart 5): 104 in April, 128 in July and 124 in October dropping off to 78 in May 2003 and, I was told, 72 in September The number of under female under 18s in STCs and LASUs in the period April to October 2002 are for the STCs 17, 18 and 35 and for the LASUs 57, 59 and 72, significantly less than those in prison. From April 2000 until Jan 2002 there was an average of 90 females under 18 in prison against an average of 58 in STCs and LASUs, a figure which has improved over the period with the arrival of STCs and more LASCH beds. By January 2002 there were 98 in prison and 68 in STCs and LASCHs. There are currently 3 STCs providing 194 beds for males and females either sentenced to DTOs or under section 90 and 91 or remanded. STCs are privately run establishments managed by the YJB through detailed contracts with independent providers. Costs 49. In February 2003, the YJB estimated that the annual cost of detaining a juvenile in each of the establishments was: Young Offender Institution 53,000 Secure Training Centre 159,000 Local Authority Secure Children s Home 164,000 (See witness statement of Caroline Rowe, paragraph 25) Eastwood Park 50. In February 2002, four months before the claimant was moved there, the HM Inspectorate of Prisons published a very critical report of an unannounced follow up inspection of Eastwood Park on the 1 st and 3 rd October Mr Le Maréchal makes no reference to the report, albeit that he says in his witness statement that he concluded that the transfer to the prison estate was not contrary to her best interests (see paragraph 41 above).

14 51. In her preface Anne Owers, Her Majesty s Chief Inspector of Prisons wrote (1/166):- This is a very troubling report, of an establishment in crisis and, at the time of the inspection, unable to provide safe, decent and constructive environment for many of the women and girls within it. 52. Among the factors contributing to that, were the arrival of 15 to 17 year old girls (in spite of commitments to remove that age group from prisons). The report is in two parts and the first part followed up concerns raised in a previous inspection before Eastwood Park held juveniles. This part showed that Eastwood Park had been unable to achieve 76 of the 112 inspectorate recommendations, and in 55 cases not even partially. These unmet recommendations covered some of the most serious areas of concern, going to the heart of the health of the prison: anti-bullying, reception and induction, suicide and self harm strategies, exercise and..activity, and health care. 53. The second part of the report, Chapter 3 (1/170) related particularly to the position of 15 to 17 year old girls who were now being placed at Eastwood Park. 54. At the time of the visit in October 53 females under the age of 21 both sentenced and unsentenced were held there. 12 of these were aged under 18, seven sentenced and five unsentenced. Their regime differed little from that of those aged over 18 with the exception of two special sessions of gym per week and a life skills class provided by the Education Department. 55. According to the Governor, there are important differences in the regimes for those over 18 on the wing and those under 18 (2/407). 56. The report noted:- The small number of girls under 18 meant that they could only realistically be held in the same living unit as those aged 18 to 21. Staff, quite reasonably, felt that it was impossible to introduce some of the regime improvements unless they were to apply to whole population of D Wing. (Paragraph 3.05, 1/171) Mr Wise points to this consequence of mixing under 18s with over 18s. 57. It was also noted that funding for improvement would be allocated for only 12 months, because of the intention to remove all girls from the prison system by April 2002 (that is, two months before the claimant arrived).

15 58. In paragraph 3.06 the Inspectors wrote that they could not find a distinctive and articulated vision of the intended new regime for girls at Eastwood Park. 59. In paragraph 3.07 the Inspectors state that having met with all 12 girls it was impossible not to be struck by the profound personality disturbance and mental health problems that many presented and by the inappropriateness of prison, or indeed any other custodial placement for them. 60. Paragraph 3.08 reads: The population of those under 18 for whom staff were caring was thus largely transient and unstable in every sense of the word. Of the 12 girls, three were at very serious risk of self harm and subject to very close monitoring. Indeed, the under 18 group seem to represent a microcosm of the entire population of D Wing. 61. Paragraph 3.09 reads:- One of the problems in developing a strategy for those under 18 appeared to be that the young offender institution part of Eastwood Park had no apparent identity or management of its own, independent of the adult prison. There was therefore no wider young offender context in which to set any planning of those under 18 years of age. 62. In paragraph 3.10 it is noted that:- The officers were regularly detained to work on D Wing were some of the most committed and hard working inspectors found in any establishment. 63. It is also noted that staff were under intense pressure as particularly at any one time in the day at least half of the population would be on the wing usually because of the absence of sufficient education and training provision. The paragraph reads on:- However, there was a significant group, including four of those under 18 whose mental state was such that they could not tolerate taking part in regular activity of the wing. 64. Paragraph 3.11 states that the recorded engagement in purposeful activity appeared to average little more than 15 hours per week falling significantly short of the target of 25 hours.

16 Judging from what was observed in this inspection, these recorded hours were further eroded in a significant way. On most days girls left late for education and were returned early for meals. On one occasion the afternoon session was almost halved when the final meal of the day was served at 4 p.m. 65. In paragraph 3.12 of its report the inspectorate noted that the girls spoke very critically of the long hours that they spent in their cells during the day and the frequent loss of the evening association. 66. The Governor, however, states that one of the important differences in the regimes for those over 18 and those under 18 is that for the latter every effort is made to maximise the time that juveniles spend out of their cells, and he gives examples (paragraphs 9 and 10, 2/407). 67. In paragraph 3.13 the report commended the approach to self harm and vulnerability and:- It was a tribute to the staff that the overwhelming majority of the 12 girls interviewed by inspectors said that they felt safe on D Wing and had not experienced bullying. 68. The report in paragraph 3.14 noted a lack of support to staff from mental health specialists and noted in 3.15 the failure on the part of the establishment to introduce the child protection procedures stipulated in PSO Paragraph 3.16 noted a failure to put in place a co-ordinated response from the establishment to the training needs of each girl. 69. The report made a substantial number of recommendations for the improvement of the care and training of young women under 18 (see 1/177). 70. Mr Kovats submits that the report made no complaint about the mixing of under 18s with over 18s. However, the report noted the inappropriateness of prison for those under 18 in Eastwood Park and also noted that it was the policy to remove under 18 females from the prison estate by April I turn to the claimant s evidence. She compares Stamford House favourably with Eastwood Park (1/101). In Stamford House she was only in her room to sleep, there was one member of staff per child and she was able to develop relationships with staff. She was treated like a child, and she felt that she obtained lots of help to talk about her offending behaviour and to talk through her feelings. Paragraph 4.3 of her first statement reads:- In prison you are locked up for long periods of time and there is no time to get to know the staff. There are a lot of drug addicts here who are dirty and they are like zombies. You can

17 get anything you want in prison I have seen a lot of things going on. You can hear staff asking for scissors to cut people down which is very disturbing. There is only one probation officer for the whole of the prison. 72. The HM Inspectorate of Prisons Report offers support for the claimant s account. It noted in paragraph 3.12 that the girls spoke very critically of the long hours which they spent in their cells (see paragraph 65 above) and that for some members of the staff: opening a cell door to find some form of serious self harm, such as a girl who had seriously cut herself or was almost unconscious with a ligature, was for some an almost daily experience. (paragraph 3.13,1/174) 73. The Governor accepts that in a typical day a person under 18 would be locked up for about 111/2 hours from to (2/410). On Saturdays and Sundays the lock-up was from until on the following day (second witness statement, paragraph 4). The claimant describes the Saturday regime as being locked up following tea at 4.15, at 4.45 p.m. until the next morning. 74. The claimant said that as far as education is concerned there were only about 15 hours per week, she found what was offered unsatisfactory and compared the much better facilities at Stamford House. The figure of 15 hours receives support in the report of the Inspectorate in paragraph 3.11 to which I have already referred. The Governor does not accept this figure and states that the proper figure is 22.5 hours (2/412 and 2/417, paragraph (c)). 75. In paragraph 4.18 the claimant wrote:- Adults: I mix with adult prisoners on a daily basis. On my wing, Delta, there are 18 to 21 year olds and I am the youngest on the wing. I meet adult prisoners, including lifers, every day in education and we all take the same classes. There are lifers in the classes too. Adults are also in the Chapel, visits hall and until recently were listeners. Held in prison changes because of the risk of abuse. During association in the evening during dining I mix with the wing which includes 18 to 21 year olds. I would quite happily agree to moving out of prison so that I did not have to associate with the older prisoners. (1/103) 76. She describes, in paragraph 4.23, meeting difficult and bad people which she would never want to meet. In paragraph 4.24 she talks about an enhanced thinking skills course on which she did not do very well:- This group programme included adults and I was the youngest one there. Everyone else on the course seemed confident, and grown-up, louder and more articulate and I felt unable to

18 contribute in the same way so did not say too much. I told them this and it was agreed I would have done better in a different group. 77. According to the Governor, exceptionally, juveniles [as he calls those under 18] are allowed to attend classes provided for young offenders and adult prisoners... if it is clear that will benefit educationally. The class teacher will know the identities of the juveniles and is responsible for monitoring the interaction (2/412). Subject to one rare exception, he states that there is no mixing of juveniles and older detainees in the gym except in so far as trusted adults act as gym orderlies (2/413). 78. The Governor gives his view on the impracticability of preventing contact with those over 18, the advantages of permitting it and the careful management of all contact (2/ and 421). Nothing in the records to suggest that those over 18 were having an adverse impact on [the claimant s] behaviour or morale (2/416). The records (2/ ) which are set out in full show, it seems to me, that her behaviour was erratic but, subject to a few more serious lapses (see e.g. 2/490), was not out of the ordinary. 79. In her second statement (1/105) the claimant commented that there was no system for placing the under 18 year olds in one area and the over 18 year olds in another area and that the cells either side of her were occupied by either persons under 18 or over 18. She states that the under and over 18 year olds mix on the wing all the time and it would be impossible not to mix given the layout of the wing and cells. In paragraph 10 she writes:- Timothy Beeston [the Governor of the prison] says that the young offenders and juveniles were told not to mix on the landings. This is nonsense; I was never told not to mix with the older people on the wing. It would be impossible not to mix with the juveniles and young offenders that will be clear from below where I describe the wing layout. 80. The description will be found in paragraphs of the second statement (1/107). The single cells for those under 18 are on the upstairs level with cells occupied by those over 18 opposite and alongside the single cells. 81. As to Mr Beeston s statement (2/420) that it was unlikely that she had much contact with lifers because Eastwood Park is used only for the short term accommodation of some lifers and that during the claimant s stay only 2 lifers were present at any one time, the claimant said (in paragraph 19 of her third statement) that she had been told by the prisoners there were lifers and spoke to two women who claimed to be lifers. 82. In paragraph 16 she refers to the drug addicts on the wing, and the strange behaviour of the self harmers. She did not recall self harm going on at Stamford House.

19 83. In paragraph 26 she compares the regime of the prison and Stamford House. 84. In her third statement she said that there would generally only be three to four officers around to supervise activities and that there were at least six areas on the wing that needed observing. In paragraph 11 she wrote that there were too many girls in too many different areas for even four officers to monitor and supervise properly as a result I saw that things went on that should not including lesbian activity, smoking and bullying. In paragraph 13 she stated that the situation would be worse if officers were called off the wing to deal with other situations leaving only one officer to supervise (1/109b). 85. The claimant did not allege that she was bullied and the absence of bullying at the time of the inspection was confirmed in the Report (see paragraph 3.13 above). 86. The Governor sets out in his second statement the staffing levels and a schedule of training courses (paragraph 6 and following), which Mr Wise criticises. The effect of his evidence is that five officers are detailed to work on D wing during the day, with a further principal officer. They work mainly on the wing and tend to stay on the wing for a considerable period of time. I have already set out the Inspectorate s very positive comments about the staff (paragraph 6 above). 87. I should add that it is not necessary for me to refer to certain material put forward by the claimant which relates to other establishments. The UN Convention on the Rights of the Child 88. The Convention was signed by the UK in 1990 and ratified with reservations in December According to then Minister of Health, Mrs Bottomley, the UK played a leading role in drafting it (House of Lords, House of Commons Joint Committee on Human Rights, 10 th Report of session (HL 117 and HC 81). The only two countries which have not ratified the Convention are the USA and Somalia. 89. By virtue of Article 1 a child is, in so far as the UK is concerned, a person under the age of 18. Thus the claimant was a child for the purposes of the Convention when sent to and detained at Eastwood Park. Under UK domestic legislation she was also a child (see section 105 of the Children Act 1989). 90. Article 3 provides: Best interests of the child 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

20 2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff as well as competent supervision. 91. Article 37 provides: Torture and deprivation of liberty (c) Every child deprived of liberty shall 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 his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child s best interest not to do so and shall have the right to maintain contract with his or her family through correspondence and visits, save in exceptional circumstances. 92. Article 51 provides: A reservation incompatible with the object and purpose of the present Convention shall not be permitted. 93. The UK entered two reservations to Article 37(c), one on behalf of the United Kingdom and one on behalf of the dependent territories. The former states: Where at any time there is a lack of suitable accommodation or adequate facilities for a particular individual in any institution in which young offenders are detained, or where the mixing of adults and children is deemed to be mutually beneficial, the United Kingdom reserves the right not to apply article 37 (c) in so far as those provisions require children who are detained to be accommodated separately from adults. The expression young offenders in the reservation means children (Simon Hickson, paragraph 17). 94. The reservation in so far as the dependent territories are concerned states: