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

The claimant, a 15 year old boy, seeks judicial review of his detention on 15 November 2011 at Birmingham Magistrates’ Court after he was arrested for the breach of a bail condition. With the permission of Leggatt J he challenges the lawfulness of his detention in the cells there on the grounds that it constituted a breach of (1) section 31 of the Children and Young Persons Act 1933 (“the 1933 Act”), which requires arrangements to prevent the association of young persons with adult defendants; (2) Article 8 of the European Convention on Human Rights (“the Convention” or “ECHR”), which protects private life; and (3) section 149 of the Equality Act 2010, which demands that due regard be given to protected characteristics such as age. The claimant seeks damages for what he contends was the unlawful detention.

The claimant in this judicial review was born on 1 December 1997. At about the age of six years he was identified by his local education authority as a child having special needs. Dr Sinead Marriott, a consultant clinical psychologist at Great Ormond Street Hospital, prepared a report for the purposes of the judicial review in early March of this year. It assesses the claimant’s IQ as being consistent with a severe impairment of intellectual functioning. It reveals that his suggestibility is slightly above average and records his long standing diagnosis of autism and attention deficit hyperactivity disorder (ADHD). An individual education plan, which it summarises, scored the claimant in 2012 for reading, comprehension, spelling and maths at significantly below the levels which would be expected.

The defendant is the Ministry of Justice, which exercises the state’s responsibility for the administration of the courts and the detention of defendants. For some twenty years the particular functions of transferring persons to and from court and detaining them in custody there are performed by private companies under contractual arrangements with the Ministry. The current contractors are GEOAmey and Serco.

The service specifications set out in a schedule to the contracts with GEOAmey require the keeping of person escort records and for the contractor to act on information in them indicating that additional measures may be needed for those deemed at risk. They also provide for the segregation and separation of certain prisoners. In particular there is the obligation to keep separate young person prisoners, from adult prisoners. In relation to prisoner welfare for young person prisoners the contractors undertake to adhere to certain key principles such as treating them with dignity, decency and respect at all times. The service specifications continue:

“All Young Person Prisoners must be treated with particular care and sensitivity, not only because of their age but because they may be experiencing secure conditions or custody for the first time. For some Young Person Prisoners it may be the first time they have been separated from their parents. The manner in which they are received by the Contractor could influence their behaviour and attitude during the period of their Custody by the Contractor, and for the remainder of the time they spend in secure establishments. Therefore when dealing with Young Person Prisoners the Contractor’s Staff must understand their unique needs and, as a minimum, apply the key principles above.”

Specifically, the contractor undertakes to “ensure compliance with section 31 of the Children and Young Persons Act 1933”.

The Ministry of Justice has published a contract user guide, dated 15 August 2011, “Prisoner escort and custody services”. Chapter 6 is about children and young persons. It covers the suitability of staff. As well, it refers to contractors having a discretion to allow some flexibility to enable appropriate adults to remain with children and young persons who have been escorted to court from either a secure training centre or secure children’s home. Separation of children and young persons from adult defendants is underlined.

The Ministry of Justice expects that under the contracts, as part of the management of custody areas, youth persons and adults will not share court cells. With one exception in Cardiff in December 2012 this expectation has been met by the contractors. Since unlike prison there are no communal areas within court cells where prisoners can meet, the only occasions where there might be an opportunity for a young person to come into contact with an adult defendant is while being escorted to and from their cell, when they are being taken to court, to see their lawyer or to use the toilet, and during the reception and discharge procedure. Everyone detained is escorted by a detention officer when in the cell area and out of their cell.

The contractual arrangements are given effect through Standard Operating Procedures, which contain the operational instructions for each custody area. The “Separation, Segregation and Cell Allocation” Standard Operation Procedure (SOP 018) provides that, “[I] n line with section 31 of the Children and Young Persons Act 1933”, the senior custody officer or officer in charge must ensure that a young person is prevented from associating with an adult, not being a relative, who is charged with any offence other than an offence with which the young person is jointly charged. SOP 18 also requires that young persons and young offenders must be kept in a separate part of the custody area from adult prisoners whenever such facilities are available. Wherever possible the operations centre must provide to the senior custody officer or officer in charge, details of each person due to be delivered in court, prior to their arrival. That must include their date of birth. When prisoners are received at court the senior custody officer or officer in charge must ensure that they are placed in a cell in accordance with their gender, status, age group and risk assessment, for example, young offenders. Where the separation of young persons cannot be facilitated due to limited cell capacity, the contractors must liaise with other agencies. Adult male prisoners should be moved to the alternative accommodation, not the young persons.

Standard Operating Procedure SOP 26, “Young Person Responsibilities”, requires that all senior custody officers must conduct a risk assessment to determine whether an alternative to cell accommodation is available such as a closed visits area or a cell located where the door could be left open. In many cases a cell may be the most appropriate location but other options must be considered first and rejected.

The Ministry of Justice employs a team of contract delivery managers who oversee the contractors’ performance of their contractual obligations. These officials visit custody areas daily and conduct checks of the contractors’ systems and operations. When failures are detected formal rectification processes are initiated. There is provision for performance improvement notices (leading ultimately to termination) and payment of liquidated damages when it is possible to demonstrate financial loss. In addition, there is a system of independent lay observers, who visit and report on the operation of the contracts and the treatment and welfare of children.

In November 2011, when he was 13 years old, the claimant was on conditional bail to the Birmingham Youth Court. He knew that he had breached the electronically monitored curfew condition of that bail and received a message from the police that an officer wished to speak to him. Accordingly, on Tuesday 15 November 2011, he voluntarily attended a police station in Birmingham just before eight o’clock in the morning. He was formally arrested, handcuffed and taken to the detention area at the police station. At 8.20am he was released into the custody of GEOAmey officers to be taken to the Birmingham Magistrates’ Court. GEOAmey is the contractor which in the West Midlands exercises the functions of the Ministry of Justice in conveying defendants to court and detaining them there.

The custody records at the Birmingham Magistrates’ Court covering the claimant’s detention on 15 November 2011 are illegible. However, we know that the claimant arrived at Birmingham Magistrates’ Court at 9.10am and was placed in a cell immediately opposite the position occupied by the custody suite. His cell had a glazed door which meant that he could be subject to observation by the staff. When his solicitor, Steven Jonas, arrived the claimant was handcuffed to a detention officer and taken to an interview room. In the course of walking to the interview room he passed at least two adults who had been taken from their cells by other detention officers. Mr Jonas recalls that the claimant was incredibly distressed as he was led along the corridor past the cells containing adults. In the interview room Mr Jonas spent some time calming him down. There was, as is usual in a busy cell area, what he describes as “a cacophony” of sounds with those detained shouting to each other. Mr Jonas remembers that the claimant himself shouted abuse at the detention officer escorting him to the interview room.

Some three hours after the claimant had arrived at the Birmingham Magistrates’ Court, at 12.20, he was taken to a court sitting as a Youth Court. Again he was accompanied by a detention officer. At approximately 12.33 he was re-bailed. Later the claimant’s mother told Dr Marriott that he was scared and intimidated when he was detained that morning at Birmingham Magistrates’ Court.

Birmingham Magistrates’ Court is one of the busiest in the country, occupying three sites: the Victoria Law Courts building contains 21 court rooms; the Youth Court is in a separate building nearby; and the Family Proceedings Court is located at the Birmingham Civil Justice Centre, elsewhere in central Birmingham. At the Victoria Law Courts four of the courtrooms have fully secure docks and five more courtrooms have docks with direct cell access. The cell area includes a direct link to the cells at Birmingham’s central police station via an underground passage.

The cells at the Victoria Law Courts are split into two locations with 19 cells in the main corridor and a further four cells in an area off the main corridor. These four cells are used for those under the age of 18 or other persons as necessary. Work was undertaken between February and May 2011 and again between November 2011 and January 2012 to improve them for this purpose. During that period, which was when the claimant was detained, it was not possible for these cells to be used because they were being upgraded. All cells at Birmingham Magistrates’ Court are constructed for single occupancy although, if necessary, they can be used to detain more than one person. The cells are for day use and do not have sanitation. A small number of the cells have glazed doors to enable staff to monitor those known to be at risk from self-harm. Some of those detained are taken to the custody desk via the tunnel connection from the adjacent police station, but the majority are brought from prisons in secure cell vans directly to the custody desk at the court.

The separate Youth Court building has six courtrooms and three cells, two on the ground floor and one on the first floor. The cells are designed for single occupancy although they can be used to double up if necessary. There is direct access from the cells to three of the six courtrooms.

From 2000 there was a reduction in the workload of the Birmingham Youth Court, the number of completed cases dropping from a monthly average of some 450 in 2000 to just over 150 in 2010. That reflected national trends. Although there was a spike in the number of youth court cases in 2011, as a result of the closure the Sutton Coldfield Magistrates’ Court, the downward trend shows no sign of changing. The reduction in court matters is a product of government policy to divert cases from the Youth Courts elsewhere.

The reduction in the amount of youth court work in Birmingham led to a consideration of how best to list cases. Initially it was intended that at the Youth Court there would be two courts sitting morning and afternoons of each weekday. However, it was decided by the Judicial Leadership Group chaired by District Judge Chinery that with effect form 1 July 2011 the most effective way of handling youth court business was for the Youth Court to sit three courts, mornings and afternoons, three days a week, Mondays, Wednesdays and Fridays. The listing pattern was for two full day trial courts and one full day remand court, the latter dealing with custody and sentencing cases in the afternoon. The reduction in the sitting days at Birmingham Youth Court to three days a week, but increasing the number of courts sitting each day, was intended to provide flexibility in handling youth court business. In particular the policy was to reduce the significant number of trials involving youths which were adjourned as a result of the overspill of remand work. The new arrangement was intended to benefit young defendants. It would reduce the delay before those in custody were dealt with in court, and therefore the time spent by young persons in the cells. It would also reduce the number of trials which were ineffective because there was no time to hear them. Sitting the Youth Court five days a week would not have cured the problem of ineffective trials.

Under the new arrangements those under the age of 18 would appear on Tuesdays and Thursdays at Birmingham Magistrates’ Court, not the Youth Court. A direction was given that those under the age of 18 were not to be bailed or remanded to non-sitting days of the Youth Court, in other words, Tuesdays and Thursdays. It was thus anticipated that the number of under 18 year olds produced on a non-sitting day would be modest, up to three persons a day. These should only be those detained in custody by the police on those days. The change in the arrangements for Birmingham Youth Court sittings was discussed by the Court Users’ Group. The claimant’s solicitor, Mr Jonas, objected. The policy was implemented.

The arrangements in Birmingham reflect the position in other parts of the country. Most Youth Courts do not sit on a daily basis. However, it is unusual for the Magistrates’ Court and the Youth Court to be housed in separate buildings as they are in Birmingham. Mostly they share one building and it is common for Magistrates’ Courts and Youth Courts to have shared cell areas. Under the contractual arrangements which the Ministry of Justice have with GEOAmey and Serco it is a requirement that young persons will be detained in separate cells from adults. In more modern court buildings in the country the cell area will contain a discrete area of cells for the separation of certain detainees such as young persons and women. Such facilities are not always available, especially in older courts.

The first ground advanced on the claimant’s behalf that his detention at the Birmingham Magistrates’ Court on 15 November 2011 was unlawful, turns on section 31 of the Children and Young  Persons Act 1933 (“the 1933 Act”). That section has the heading “Separation of children and young persons from adults in police stations, courts, &c” and requires arrangements preventing the two groups from associating. It reads as follows:

“Arrangements shall be made for preventing a child or young person while detained in a police station, or while being conveyed to or from any criminal court, or while awaiting before or after attendance in any criminal court, from associating with an adult (not being a relative) who is charged with any offence other than an offence with which the child or young person is jointly charged, and for ensuring that a girl (being a child or young person) shall while so detained, being conveyed, or waiting, be under the care of a woman.”

In the Act “child” is defined as a person under the age of fourteen years and young person as one who has attained the age of fourteen and is under the eighteen: s.107. In what follows the term “young person” is used to cover both categories.

The submissions

For the claimant Mr Wise QC submitted that, in breach of section 31, the claimant was “associating” with adults on the day of his detention in November 2011 at the Birmingham Magistrates’ Court. The prohibition in section 31 should be interpreted purposefully so as to prevent a young person being intimidated or influenced by adults charged with criminal offences. The evidence is that on the day adult defendants were vociferously communicating with others in the cell block. That communication, in Mr Wise QC’s submission, constituted association. The claimant also met adult defendants along the corridor and was incredibly distressed as he passed their cells. This is precisely the kind of intimidation and distress which section 31 seeks to prevent. Mr Wise QC invoked international instruments such as the Beijing Rules and the International Convention on the Rights of the Child in support of his submission.

For the Secretary of State for Justice Ms Dobbin contended that the obligation imposed by section 31 is to make arrangements for preventing a young person from associating with an adult defendant, and “associating” in this context means meaningful social interaction or communication, not merely hearing or seeing adult defendants. In her submission section 31 does not impose an obligation to provide entirely separate court buildings, police stations or custody areas. The section 31 obligation was met on the facts of this case, and is met generally by the Ministry of Justice, by ensuring that young persons detained at court are in a separate cell and are accompanied at all times, when not in a cell, by a detention officer. Moreover, in Ms Dobbin’s submission, there is no obligation derived from international law to provide for the physical separation of young persons from adults during their detention at a court building.

International law

Before turning to what we regard as the key to interpreting section 31 of the 1933 Act, we should address the relevance of international instruments to the task.

Chronologically the international instruments relevant in this case begin with the Beijing Rules, the shorthand description for the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 29 November 1985, contained in a Resolution of the General Assembly of the United Nations: A/RES/40/33. Rule 10 of the Beijing Rules covers initial contact on the apprehension of a young person and requires contacts between law enforcement agencies and young persons to be managed in a way which respects their legal status and well-being and avoids harm. Under Rule 11 diversion from the ordinary criminal justice system must be considered. Rule 13 is entitled “Detention pending trial”. Rule 13.4 reads as follows:

“Juveniles under detention pending trial shall be kept separate from adults and shall be detained in a separate institution or in a separate part of an institution also holding adults.”

The commentary to Rule 13.4 provides that States are not prevented from taking other measures against the negative influences of adult offenders which are at least as effective as the measures mentioned in the rule. It refers to the varying physical and psychological characteristics of young detainees which may warrant classification measures by which some are kept separate while in detention pending trial, thus contributing to the avoidance of victimisation and rendering more appropriate assistance. The commentary refers to a Resolution passed by the Sixth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, whereby minors should not be held in a facility where they are vulnerable to the negative influences of adult detainees and account should always be taken of the needs particular to their stage of development.

The United Nations Convention on the Rights of the Child (“the United Nations Convention”) entered into force on 2 September 1990. The United Kingdom has ratified the Convention but not introduced it wholesale into domestic law. In Article 37(c) the Convention provides:

“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 contact with his or her family through correspondence and visits, save in exceptional circumstances.”

Article 40 of the Convention contains a recognition by the States which are party to the Convention of the right of children in the criminal justice system to be treated in a manner consistent with the promotion of their sense of dignity and worth. In 2007 the Committee on the Rights of the Child published its General Comment (No.10), “Children’s rights in juvenile justice,” intended in part to provide States parties with guidance on the interpretation and implementation of Articles 37 and 40. As regards Article 37(c), the Comment provides:

“85.

Every child deprived of liberty shall be separated from adults. A child deprived of his/her liberty shall not be placed in an adult prison or other facility for adults. There is abundant evidence that the placement of children in adult prisons or jails compromises their basic safety, well-being, and their future ability to remain free of crime and to reintegrate. The permitted exception to the separation of children from adults stated in article 37 (c) of CRC, “unless it is considered in the child’s best interests not to do so”, should be interpreted narrowly; the child’s best interests does not mean for the convenience of the States parties. States parties should establish separate facilities for children deprived of their liberty, which include distinct, child-centred staff, personnel, policies and practices.

For the sake of completeness, reference should also be made to the United Nations Rules for the Protection of Juveniles Deprived of their Liberty, a product of a General Assembly Resolution of 14 December 1990: A/RES/45/113. The resolution has, as one of its recitals, a recognition that, because of their high vulnerability, young persons deprived of their liberty require special attention and protection and that their rights and well-being should be guaranteed during and after the period when they are deprived of their liberty. Finally, Article 10(2)(b) and 10(3) of the International Covenant on Civil and Political Rights, which entered into force in 1976, lays down that:

“Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication ... Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status”.

For the Ministry of Justice Ms Dobbin submitted that none of these international instruments applies to short term detention such as detention at a police station or court. Any obligations which exist in international law, for the separation of detained young persons from adults, apply to longer term forms of detention pending trial or after conviction. In our view these international instruments cannot be given so narrow an interpretation. They are concerned to prevent the detention of young persons with adults in both short and long term forms of detention. The wide import of rule 13.4 of the Beijing Rules cannot be restricted by what might be thought to be the focus in the commentary on longer term detention. Nor can the general words of the first sentence of article 37(c) of the United Nations Convention on the Rights of the Child be qualified by the situation identified in the second sentence, which implies longer term detention, since contact, correspondence and visits are especially important to young persons in that form of detention. The purposive approach to such provisions such as those contained in international instruments militates against such a narrow reading.

Where Ms Dobbin’s submissions have greater force is in relation to the status of these international instruments in our domestic law. It is trite law that a treaty, even if ratified by the United Kingdom, has no binding force in domestic law unless it is given effect by statute: J H Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, 476H-477A, 500B-D. Mr Wise QC invoked Dyer v Watson [2002] UKPC D1; [2004] 1 AC 379, where the issue was whether the delay for a child awaiting trial was in breach of his right to trial within a reasonable period under Article 6 (1) of the European Convention on Human Rights, as scheduled to the Human Rights Act 1998. In the course of his judgment Lord Bingham said that the reasonable time requirement in the European Convention had, when dealing with children, to be read in the light of the UN Convention of the Rights of the Child and the Beijing Rules, both of which applied to the claimant in that case and both of which highlighted the need for criminal proceedings, if brought at all, to be prosecuted with all due expedition: [61] (see also [104]-[105], per Lord Hope, [109], per Lord Rodger).

In our view Dyer v Watson is no warrant for the wholesale introduction into domestic law of these international instruments. First, the case was decided against the background that the Strasbourg court, when considering ECHR Rights, interprets them in harmony with the principles of international law such as those contained in the United Nations Convention on the Rights of the Child: for example, V v United Kingdom (1999) 30 EHRR 121, [72] – [73]; Neulinger v Switzerland (2012) 54 EHRR 31, [131]. Secondly, there is authority that the words of a United Kingdom statute, passed after the date of a treaty and dealing with the same subject matter, are to be construed as if they were intended to carry out the treaty obligation: e.g. A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221, [27]. That principle would be consistent with Parliament not intending to legislate inconsistently with the binding principles of international law. As regards Dyer v Watson, the Human rights Act 1998, which domesticated the European Convention, came after the International Convention on the Rights of the Child and the Beijing Rules and is therefore consistent with that principle.

Wider propositions than those contained in A are not supported by binding authority. In R v Secretary of State for the Home Department, ex parte Venables [1998] AC 407 the Secretary of State had fixed a tariff period for a young person who had been detained during Her Majesty’s pleasure. In the course of his speech Lord Browne-Wilkinson referred to the important consideration of the welfare of the child offender to be taken into account in the exercise of the Secretary of State’s discretion. That conclusion was reinforced, said Lord Browne-Wilkinson, by the fact that the United Kingdom was a party to the United Nations Convention on the Rights of a Child. Although it had not been incorporated into English law, he continued, it was legitimate in considering the nature of detention during Her Majesty’s pleasure to assume that Parliament had not maintained on the statute book of power capable of being exercised in a manner inconsistent with the obligations set out in that Treaty: 499F. None of the other law lords endorsed Lord Browne-Wilkinson’s approach.

In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4; [2011] 2 AC 166, to which we return below, Baroness Hale (with whom Lords Hope, Brown and Mance JJSC agreed) referred to various international instruments in her reasoning, including what she characterised as the most relevant, article 3.1 of the United Nations Convention on the Rights of the Child, which mandates the best interests of the child as a primary consideration in actions by public bodies. But the claim in that case concerned article 8 ECHR. As well, as Baroness Hale explained, article 3.1 of the United Nations Convention has been translated into national law in spirit, if not the precise language: [23]. She referred to section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009, the latter obliging the Secretary of State to make arrangements for ensuring that her immigration, asylum and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children in the United Kingdom.

We are not persuaded that the United Nations Convention on the Rights of the Child can be employed to assist the interpretation of section 31 of the 1933 Act, let alone the Beijing Rules, which are not binding in international law (see R (R) v Durham Constabulary [2005] UK HL 21; [2005] 1 WLR 1184, [26]), when these instruments post-date it by some six decades. No Strasbourg right is in contention. Nor has legislation translated the relevant parts of the United Nations Convention or the Beijing Rules into domestic law. Section 11 of the Children Act 2004, which places a duty on a large number of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children, does not list the Ministry of Justice when exercising the functions at issue in this case, whether by accident or design is not immediately apparent. In our view to be tempted down the path Mr Wise QC sign posts would constitute an illegitimate exercise of the legislative function by this court. Section 31 must be interpreted without the assistance of the international instruments he has identified.

The meaning of section 31

As with any exercise in statutory interpretation the relevant words of section 31 of the 1933 Act must be given meaning in their statutory context and in the light of the Parliamentary intention. As to the words of the section, the “arrangements” which must be made are the steps which must be taken or the adaptation made. They are to prevent young persons from associating with adult offenders. The different categories of young person to which the section applies are those detained in a police station, those being conveyed to and from any court, and those awaiting an appearance in a court or being present after it. Thus the section is not confined to young persons in custody but applies to those who appear at court on bail and to young persons who are witnesses.

The dictionary meaning of “associate” is to join, to link together or to unite with others, but includes to accompany, escort or attend. Ms Dobbin cited Lord Dormer v Knight [1809] 1 Taunt 417: 127 ER 895, which seems to be the only case in the legal dictionaries where the term “associate” appears. There it was held that the receiving of visits involved an association between the visitor and the person being visited. However, that was in the context of a deed where an annuity would cease if a woman should associate with a particular man, and the court held that his visiting her, albeit innocently, constituted association. That decision tells us nothing about the meaning of the term “associate” in the context of section 31 of the 1933 Act.

The statutory context of section 31 includes its history. The 1933 Act was a consolidating measure and section 31 was previously section 80 of the Children and Young Persons Act 1932. Section 80 in turn was derived from section 113(3) of the Children’s Act 1908. Section 113(3) required the “provision” to be made for preventing young persons while waiting at court from associating with adult defendants. The Children’s Act of 1908 was a reform measure, one part dealing with juvenile offenders. In introducing the Bill Herbert Samuel MP said that one principle of this part was “that the child offender ought to be kept separate from the adult criminal, and should receive at the hands of the law a treatment differentiated to suit his special needs – that the courts should be agencies for the rescue as well as the punishment of children”: HC Deb, 10 February 1908, vol 183, c1436.

As to its immediate statutory context, the 1933 Act, section 31 is the first section in Part III of the Act, which is entitled “Protection of children and young persons in relation to criminal and summary proceedings.” Elsewhere in Part III is section 45, which provides for the establishment of Youth Courts, which are Magistrates' Courts constituted in accordance with the section or, following later amendments, with section 66 of the Courts Act 2003 (judges having powers of district judges (Magistrates' Courts)), and sitting for the purpose of hearing a charge against a young person, or exercising any other jurisdiction conferred on them. Section 45 does not require that a Youth Court has to have a physical separation from the Magistrates’ Court. Section 45 of the 1933 Act provides for the composition of a Youth Court and for its powers and procedures. Generally speaking section 46 (1) of the Act prohibits charges against a young person from being heard by a Magistrates' Court which is not a Youth Court. Under section 47 (1) of the 1933 Act a Youth Court must sit as often as may be necessary for the purpose of exercising the jurisdiction conferred on them.

As to the wider statutory context, chapter 3 of part 3 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“the 2012 Act”) continues, with variations, the provisions of earlier legislation, notably the Children and Young Persons Act 1969. A court remanding a person under 18 charged with or convicted of an offence, and not bailing the person, must remand him of her to local authority accommodation or to youth detention accommodation: s. 91(1), (3)-(4), (6)-(7). The conditions imposed on a young person remanded to local authority accommodation are the same as the court may apply to a young person who is remanded on bail under the Bail Act 1976, and compliance with any requirements imposed may be secured by means of electronic monitoring: s. 93(1)-(2). A person under the age of 21 who is convicted and sentenced is subject to detention in a Young Offender Institution, not imprisonment: Powers of Criminal Courts (Sentencing) Act 2000; s. 89(1).

Commenting on section 31 of the 1933 Act at the time of its enactment, one commentator opined that under it special precautions have to be taken while a young person was waiting at court “in order to avoid moral risks which association with older offenders might produce”: Ikin, Children and Young Persons Act 1933, London, 1933, 141. In his seminal book Child Law, London, 1989, Professor HK Bevan identified the statutory purpose behind the arrangements required in section 31 as being “to minimise the risk of contact with hardened criminals”: para 10.03. Dr Bainham in his book Children. The Modern Law 3^rd ed, 2005, writes that the section means a juvenile must not be allowed to come into contact with an adult prisoner (pp. 642, 645).

That, to an extent, echoes the approach of this court in R v Accrington Youth Court Ex p. F [1998] 1 WLR 156, which both counsel cited to us. That case concerned a different statutory provision, now repealed, under which the Secretary of State could on occasion direct that a young offender be detained in a prison or remand centre temporarily for allocation purposes. It was held that this did not authorize the then blanket policy by which female offenders between 15 and 17 were detained in women's remand centres. The practice was explained because there was no female young offender institution as such in the country and only five women's prisons, parts of which had been designated as young offender institutions. In the course of his judgment Sedley J recorded “our anxiety at the issues it raises about the possibility of close and unsupervised contact between a young offender, who will by definition be in some measure disturbed, and adult women prisoners, whose range of possible deviances needs no elaboration; this despite the evidence of the steps taken to prevent abuse”: 159-160. Agreeing, Astill J said: “In prison, young female offenders mix with adult offenders, some of whom have committed grave crimes and many of whom have disturbing personal problems … It would be difficult to find any argument which supported that position”: 164. Clearly this is not the position under the contractual arrangements entered into by the Ministry of Justice for the purposes of section 31, under which there cannot be close and unsupervised mixing between young persons and adult defendants detained at courts.

In the light of its statutory language and purpose, we cannot accept that section 31 is confined to arrangements preventing what has been termed meaningful social interaction or communication in a communal area. In ordinary discourse the words of the section have a wider import than that. Moreover, the objective of the section is to prevent what the 1933 commentator described as the moral risks of contact between young persons and adult defendants. Those risks will vary with factors such as age and vulnerability. Certainly the arrangements must ensure that young persons at court are prevented from being able to speak, communicate or interact with adult defendants. Ensuring that young persons and adults are not afforded the opportunity to speak or socialise by sharing a cell or by associating outside the cell are part of that. However, as Professor Bevan envisages, the arrangements must also cover the risks of other types of contact. Thus the arrangements may need to address transitory contact or even physical proximity where these give rise to the risks to which the section is directed. On the other hand, the arrangements mandated by section 31 plainly do not oblige the use of separate court buildings for young person defendants and witnesses or even entirely separate custody areas in the one court building.

Whether what is provided on a given day at a given court complies with the requirements of s.31 is therefore highly fact specific and to be judged in the statutory context of section 31. We therefore turn to examine the facts relating to the detention of the claimant in the court at Birmingham on 15 November 2011.

The claimant’s detention

Ms Dobbin properly takes the point that the judicial review was filed late, on 10 April 2012. She then contends that the Ministry of Justice is put at a disadvantage in producing evidence. Powerful though that point might be in some circumstances, it is not in this case. The custody records, for which the Ministry of Justice is ultimately responsible, are illegible. The records required by SOP 18, which the operation centre should have generated about this claimant prior to his arrival at Birmingham Magistrates’ Court, have not been produced. There is no evidence of the risk assessment required by SOP 26, exploring whether an alternative to cell accommodation was appropriate in this claimant’s case. The absence of the required documentation not only undermines that submission, but places the Ministry in a very difficult evidential position.

That evidential position is clear. Ordinarily, there were refurbished cells in the separate part of the cell block for young persons. It may well be, as Mr Wise QC accepted, that a young person held in those cells would be being held under arrangements compliant with section 31. In November 2011 those cells were being refurbished and not available. We have not therefore examined the arrangements that were in place for the use of those cells

However as to the position as it existed on 15 November 2011, first there is no evidence as to the taking of proper steps to comply with the duty under section 31 in the absence of that accommodation. For example, no explanation has been given for the delay in the claimant appearing in court, in particular, why arrangements were not in place for a court to hear his case soon after his solicitor interviewed him. There is no statement as to the usual practice of dealing with young persons like this claimant in detention at the Birmingham Magistrates’ Court during the closure of the usual cells. There was no evidence as to what consideration was given to the particular needs of young persons of the age and particular vulnerabilities of the claimant.

Second, the evidence is that this 13 year old claimant with his particular vulnerability was in a cell for some three hours, with a glazed door opposite the custody desk, had transitory contact with at least two adult prisoners in the corridor and could hear adults shouting either at him or at other prisoners. It is, we regret to say, unfortunate that there is no evidence that the duty under section 31 was addressed in the circumstances; there is no evidence of any attempt to put in place other arrangements that could easily have dealt with the issues in dealing with defendants who were very young or who had particular vulnerabilities that had arisen from a combination of the listing arrangements at the court and the lack of the usual accommodation.

Ms Dobbin invited us to draw the inference that, because the claimant was placed in a cell immediately opposite the custody desk, with a glazed door, care was being exercised. But that does not address the arrangements for preventing association with adult defendants required by section 31. On the evidence and in all the circumstances we have described, that was not a sufficient arrangement to prevent association as we have explained is required by section 31.

In the result, we therefore conclude that on the evidence before us relating to the position in Birmingham on 15 November 2011 and the arrangements in respect of the claimant, there was a breach of section 31 on 15 November 2011 when this claimant was detained at Birmingham Magistrates’ Court.

Mr Wise QC’s second ground challenging the lawfulness of the claimant’s detention was that there was a breach of article 8 of the European Convention on Human Rights. The first prong to his submissions under this head was that it is clear that article 8 was engaged by the claimant’s detention, the threshold for such engagement being low in respect of a young person like the claimant. Secondly, since article 8 was engaged, the obligation on the Ministry of Justice was to determine whether the detention was in that person’s best interests and, if not, whether there were any countervailing reasons for displacing them. Placing the claimant in the cell block which also contained adult defendants was clearly contrary to his best interests. In article 8 jurisprudence the best interests of the child much be considered before a decision is made which affects his or her rights. There is no evidence that the best interests of this claimant were considered before it was decided to place him in a cell block where adults were also detained or whether there were any countervailing reasons to displace his best interests. It was plainly not in the claimant’s best interests to have been placed in the cell block with adults on 15 November 2011 and there were no sufficiently strong reasons to override his best interests such as to require detention. Accordingly there was a breach of article 8 and damages are payable for the breach.

In our view article 8 was engaged in this case. The threshold requirement is not especially high. In R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, Lord Bingham of Cornhill suggested that the engagement of article 8 depends upon an affirmative answer to two questions, namely whether there has been or would be an interference by a public authority with the exercise of a person's right to respect for his private or family life and, if so, whether it has had, or would have, consequences of such gravity as potentially to engage the operation of the article: [17]; see also R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, [30] per Lord Wilson JSC. Here the detention did constitute an interference with the claimant’s private life and it can hardly be said that for a 13 year old to be detained for some three hours in cells is de minimus. Moreover, we are prepared to accept for the purposes of the argument that, once engaged, the best interests of the claimant as a 13 year old had to be a primary consideration in any balancing exercise as to whether under article 8(2) the detention was justified, although we note that the authority cited in support of this proposition was founded, as explained earlier, on statutory authority obliging the Secretary of State to carry out her functions to safeguard and promote the welfare of children: ZH (Tanzania), at [24]. There is no comparable legislation in this present context to section 11 of the Children Act 2004 or section 55 of the borders, Citizenship and Immigration Act 2009.

Why we have concluded that the claimant’s case on article 8 fails is that his detention at the Birmingham Magistrates’ Court was the consequence of a lawful decision of the police, not the Ministry of Justice, to detain him earlier that morning. In R (on the application of Francis) v Secretary of State for the Home Department [2011] EWHC 1271 (Admin), this court considered the wrongful refusal of home detention curfew to a prisoner who it was intended to deport but who, strictly speaking, was eligible under the statute. Her continued detention during the period from the refusal of home detention curfew to when she actually became liable to deportation was pursuant to her sentence. Nonetheless, she contended that it was an interference with her article 8 private life right. Toulson LJ (with whom Lloyd Jones J agreed) said:

“43.

A person who is lawfully detained, whether under a sentence of the court or under immigration powers, does not lose all their rights under article 8. But some interference with a person's private and family life is an unavoidable concomitant of detention. That applies in this case. I cannot see that the claimant can advance a claim under article 8 in respect of interference with her personal and family life which did not go beyond the inference inevitably caused by her detention, if the detention was lawful.”

So too in this case. The decision to detain the claimant on the morning of 15 November 2011, pending his appearance before the court for breaching his bail conditions, was a lawful decision of the police. The claimant was then taken to the court in custody. Custody staff at a court do not have the discretion to release persons brought to the court in custody but are obliged to detain them, pending a judicial decision. Detention by the contractor on behalf of the Ministry of Justice in the claimant’s case was the inevitable concomitant of the lawful decision by the police to detain. The claimant’s detention at court did not raise a separate issue under Article 8, especially when the very purpose of detention was to bring him before a Youth Court in order for it to determine whether he should be re-bailed or remain in custody. The decision by custody staff as to his location in the cells could not, in our view, constitute a separate basis upon which his Article 8 rights were engaged when it is his detention which is being challenged.

The final ground advanced on behalf of the claimant is that the Ministry of Justice was in breach of its duties under section 149 of the Equality Act 2010 in placing him in the cells on 15 November 2011. In summary that section demands that a public authority have due regard to the need, in particular, to take steps to meet the needs of children: s. 149(1), 3(b), (7). By reference in particular to R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin); [2009] PTSR 1506, Mr Wise QC contended that the Ministry of Justice had had no, or no proper, regard to that duty. In carrying out its function of detaining defendants and deciding to accommodate children such as the claimant in the same cell block as adults, the Ministry of Justice was obliged to have due regard to the particular needs of children in such circumstances and to take steps to meet them. There was no evidence it had carried out its due regard duty rigorously, as Atkins LJ put it in Brown at [92], or asked whether the detention, with its potential impact, would be consistent with the need to pay due regard to the principle of equality: R (W) v Birmingham City Council [2011] EWHC 1147 (Admin); 120 BMLR 134, at [179], per Walker J.

In R (on the application of Greenwich Community Law Centre) v Greenwich LB [2012] EWCA Civ 496; [2012] Eq. L.R. 572, Elias LJ (with whom Ward and Black LJJ) agreed, reviewed the demands of the equality duty, in particular that due regard is regard which is appropriate in all the circumstances, and emphasised the need for the court to ask whether as a matter of substance there has been compliance. At the same time, Elias LJ said, the courts must ensure that they do not micro-manage the exercise: [25].

In this case, the circumstances of the need to pay due regard is that young persons are lawfully detained by the police and the function of the Ministry of Justice is to accommodate them in custody pending any judicial decision to release them. It is not a situation of deciding whether young persons should be in custody in the first place, or where they should be detained if they are on remand or after conviction. In its arrangements with the contractors the Ministry of Justice has laid down how young people who are detained in cell areas at courts are to be treated. Earlier in the judgment we referred to the aspects of the service specifications, the contract user guide and the relevant standard operating procedures which address the position of the young people. We also described how the Ministry of Justice ensures their implementation through supervision arrangements. In our view these steps demonstrate that due regard had been given to the section 149 duty owed to young persons detained at court on 15 November 2011.

For the reasons we have given this claim for judicial review succeeds, but only on the ground that in the particular circumstances of the case there was a breach of section 31 of the 1933 Act.