JM, R (On the Application Of) v Secretary of State for Justice

J U D G M E N T

1. MR JUSTICE EDWARDS-STUART:

Introduction

2. This claim concerns a challenge by way of judicial review of the defendant's decisions to close Her Majesty's Young Offender Institution at Ashfield which is situated in Pucklechurch, near Bristol, and is currently run as a privately managed young offender institution by the Serco Group Plc. They are an interested party in this claim but they have not appeared before the court, the effective defendants have therefore been the Secretary of State, and secondly, the Youth Justice Board. I shall refer to the Youth Justice Board as the "the Board" where appropriate.

3. Permission to judicially review the defendant's decisions was granted by Parker J on 22nd April 2013. When the claim was first issued it was brought in the name of five young offenders place set Ashfield. Four of the five original claimants have since been transferred to other young offender institutions but JM, who is 17, remains in detention at Ashfield, this claim is being pursued in his sole name albeit he is represented in those proceedings by his mother Litigation Friend.

4. I should make clear at the outset that I have already directed that this case is to be reported under the name of JM rather than his full name of his mother and that is to apply to all future references to it.

5. The claimant's case is that the decision to decommission to the Ashfield Young Offender Institution is likely to have a very adverse effect on him and on others in a similar position because it may prevent his mother from visiting him in detention or at least reduce the frequency of her visits. This he submits is an unwarranted interference with his right to family life.

6. In this claim the claimant has been represent by Mr Marc Willers instructed by Southwest Law and the defendants have been represented by Miss Gemma White, instructed by the Treasury Solicitor.

The Facts

7. In July 2011 the Ministry of Justice and the Youth Justice Board held a wide scale public consultation entitled "Strategy for the Secure Estate for Children and Young People in England and Wales plans for 2011/12 to 2014/15". The document produced for that exercise did not contain any specific proposals regarding decommissioning of institutions but did indicate that the Board would continue to monitor the number of young people in custody carefully, in order to update its plans and to match supply with demand.

8. The authors of that document acknowledged this:

"Effective preparation for resettlement must start when a young person is first placed in custody. Crucially, this should, where appropriate, involve the effective engagement of a young person’s family. This should be a staple part of the work of secure establishments."

9. An example fairly typical in its content and import of the responses to this consultation was that from the organisation known as Action for Prisoners Families, who said this:

"APF would wholeheartedly agree that effectively resettlement starts on reception and families need to be contacted by the prison and involved from Day 1 of the sentence. However, this strategy generally makes little mention of the families of the young people in custody or the pivotal role they can play in resettlement.

While APF welcomes the decrease in the population of children in custody, we are concerned that a fall in number of places where they are held means that many children will be held and ever increasing distance from home. This is particularly true of girls in custody as they make up such a small percentage of the population. Holding children a long away from home undoubtedly makes it more difficult and more expensive for their families to come and visit and consequently makes it harder for them to maintain their family ties. Distance from home also affects their resettlement back into their own community and their ability to link into local education, employment, accommodation and welfare services. Being too far from home inhibits the prison, the family and local services working together to help the young person properly plan for their release. We would encourage the Board to develop the proposed smaller satellite sites for those young people for whom a custodial sentence is inevitable."

10. At the end of the consultation process the defendants published a document entitled "Developing the Secure Estate for Children and Young People in England and Wales: plans until 2015". In paragraph 9 of the development plans upon part of this document under the heading "context and charities" it said this:

"a fiscal climate, which requires a particularly prudent approach to public spending. From 2010/11 to 2011/12, the YJB’s custodial budget decreased by 14.5% from £305.6m to £261.3m.3 It is predicted to

decline further to £202.3m in 2014/15. This has an impact on how we fulfil our functions, as well as how we respond to operational

challenges."

11. The only specific reference in the development plans to the number of places in particular young offender institutions was to be found under the heading "geographical distribution" where the defendant stated as follows:

"32. The YJB’s commissioning functions include the regular review of the current

geographical distribution of services. We are particular mindful of the fact that

current demand outstrips supply in London and the South East. To this end the YJB and the National Offender Management Service (NOMS) have

agreed to increase provision at Cookham Wood YOI in Rochester (Kent). A new accommodation block and a separate education block will be built

increasing the maximum capacity from 131 to 208. Current plans are to gain planning permission in spring 2012 and to have completed the extension by

autumn 2013.

33. We do not intend to increase overall under-18 YOI capacity, and will continue

to review current capacity in this sector prior to the beds at Cookham Wood

becoming available."

12. As a brief summary of the defendant's decision making process I will adopt the narrative in the claimant's skeleton argument. This is as follows at paragraph 33:

"On 11th September 2012 the second defendant's Decommissioning Project Board ('the Decommissioning Board') met to consider YOI decommissioning options having regard to the fact there was surplus capacity in the YOI estate of 400 places. The Decommissioning Board agreed to consider four decommissioning options and set 12 criteria against which the options would be assessed. No scoring system was to be used.

34. On 27th September 2012 the Decommissioning Board met again. Prior to the meeting the members of the Decommissioning Board were provided with the detailed narrative (the decommissioning narrative) in relation to the four options set against the 12 agreed criteria. In the event the Decommissioning Board recommended decommissioning all 360 places HM Young Offender Institution Ashfield.

35. the Treasury Solicitor's Pre-action Protocol Response letter date 6th February 2013 the following reasons were given for the YJB's decision to recommend the decommissioning of HMY Ashfield. The YJB considered that Ashfield represented the most appropriate decommissioning option because its occupancy levels were low and therefore commissioning beds there did not represent value for money. There was significantly more places commissioned at Ashfield than demand for young people in the southwest (it receives a high number of young people from London, the southeast and the Midlands) NOMS had indicated a clear interest in re-rolling Ashfield as an adult prison and it offered the greatest decommissioning savings to the YJB.

36. On 2nd October 2012 the Decommissioning Board's recommendation was endorsed by the YJB's executive management group (EMG) and on 3rd October 2012 the decision was endorsed by the YIO chair and the chair of the secure accommodation of the Committee of the YJB on behalf of the YJB's Full Board.

37. On 30 October 2012, an equality impact assessment EIA was signed off as approved by Mr Ray Heul, the second defendant's Deputy Chief Exectutive, secure accommodation.

38. In December 2012 the first defendant approved the second defendants withdrew from all 360 places at YOI Ashfield and his decision was announced in a written ministerial statement issued on 10 January 2013."

13. I will turn to some of the detailed considerations given by the Decommissioning Board later in this judgment. However, before doing so I will turn to the authorities cited.

The Authorities

14. The first authority cited by Mr Willers, on behalf of the claimant was the decision of this court by Munby J in R (on the application of) the Howard League for Penal Reform v Secretary of State for the Home Department. It was a claim that raised important questions as to the duties owed by the State to young people under the age of 18 who are in detention. It is not necessary to say any more about the details of the case because Mr Willers relied solely on various statements of principle by Munby J.

15. At paragraph 10 of his judgment he said this:

"There are at present some 3,000 children in YOIs. Somewhere in the region of 1,000 are aged either 15 or 16. The rest are aged 17. They are, on any view, vulnerable and needy children. Disproportionately they come from chaotic backgrounds. Many have suffered abuse or neglect. The view of the Howard League is that they need help, protection and support if future offending is to be prevented."

Then at paragraph 45 Munby J said this:

"I have, however, been referred to three different Human Rights instruments: the European Convention for the Protection of Human Rights and Fundamental Freedoms ('the European Convention'), the United Nations' Convention on the Rights of the Child, 1989 ('the UN Convention'), and the Charter of Fundamental Rights of the European Union, proclaimed at Nice in December 2000 ('the European Charter'). "

At paragraph 48 he said this:

"The relevant provisions of the UN Convention are articles 3 and 37. Particularly important for present purposes are articles 3.1 and 37(c). Article 3.1 provides that:

' 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.'"

16. The final passage to which I should refer from that judgment is his conclusions expressed in paragraph 67 in these terms:

"Such measures must strike a fair balance between the competing interests of the particular child and the general interests of the community as a whole (including the other inmates of the YOI) but always having regard:

i. first, to the principle that the best interests of the child are at all times a primary consideration.

ii. secondly, to the inherent vulnerability of children in a YOI and

iii . thirdly, to the need for the State – the Prison Service – to take effective deterrent steps to prevent, and to provide children in YOIs with effective protection from, ill-treatment (whether at the hands of Prison Service staff or of other inmates) of which the Prison Service has or ought to have knowledge."

Pausing there, whilst Munby J was clearly identifying principles of general application, it has to be noted he was considering the position of the treatment of young offenders individually within the young offender institutions and other establishments.

17. I was then referred by Mr Willers to the case of H(H) v Deputy Prosecutor of the Italian Republic [2012] 3 WLR page 90. At paragraph 12, in the speech of Baroness Hale she said this:

"Although nationality was not a 'trump card' it was of particular importance in assessing the best interests of any child (para 30). As citizens the children had rights which they would not be able to exercise if they moved to another country (para 32). [I should interpolate these are references to the case of ZH(Tanzania) ]We now had a much greater understanding of the importance of such issues in assessing the overall well-being of the child:

'In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations'.

The countervailing considerations were the need to maintain firm and fair immigrations control, the mother's immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that (para 33)."

At paragraph 13 she said:

"Lord Hope also stressed the importance of the children's citizenship as 'a very significant and weighty factor' in the overall assessment of what was in the children's best interests (para 41) and, more fundamentally, that 'it would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held responsible', such as the suspicion that they might have been conceived as a way of strengthening the mother's case for being allowed to remain here (para 44)."

Paragraph 14 in her judgment she went on:

"Lord Kerr put it even more strongly. It is 'a universal theme of both international and domestic instruments:

'that, in reaching decisions that will affect a child, primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them."

At paragraph 15 she went on to say:

"However the matter is put, therefore, ZH (Tanzania) made it clear that in considering article 8 in any case in which the rights of a child are involved, the best interests of the child must be a primary consideration. They may be outweighed by countervailing factors, but they are of primary importance. The importance of the child's best interests is not to be devalued by something for which she is in no way responsible, such as the suspicion that she may have been deliberately conceived in order to strengthen the parents' case."

I was also referred to two paragraphs of Lord Kerr of Kinlochard. At paragraph 143 he said this:

"The debate about whether the interests of the child should be, in article 8 terms, a primary consideration or the primary consideration is a fairly arid one but I have to say that I find the notion that there can be several primary considerations (or even more than one) conceptually difficult. Primary, as an adjective, means 'occurring or existing first in a sequence or series of events or circumstances' (Oxford English Dictionary). Its natural synonyms are 'main', 'chief', 'most important', 'key', 'prime', and 'crucial.'"

At paragraph 144 he said:

"I have found the argument about the place that children's interests should occupy in the hierarchy of the court's consideration of article 8 most persuasively expressed in the Coram Children's Legal Centre note submitted in the course of this appeal. It is unquestioned that in each of these cases, the children's article 8 rights are engaged. As a matter of logical progression, therefore, one must first recognise the interference and then consider whether the interference is justified. This calls for a sequencing of, first, consideration of the importance to be attached to the children's rights (by obtaining a clear-sighted understanding of their nature), then an assessment of the degree of interference and finally addressing the question whether extradition justifies the interference. This is not merely a mechanistic or slavishly technical approach to the order in which the various considerations require to be evaluated. It accords proper prominence to the matter of the children's interests. It also ensures a structured approach to the application of article 8. Lord Wilson says (in para 153) that there is no great logic in suggesting that in answering the question, 'does A outweigh B', attention must first be given to B rather than to A. At a theoretical level, I do not disagree. But where a child's interests are involved, it seems to me that there is much to be said for considering those interests first, so that the risk that they may be undervalued in a more open-ended inquiry can be avoided."

18. The next relied on by Mr Willers was R (on the application) HC v Secretary of State for the Home Department, a decision of a two-man court sitting in the Administrative Court, constituted, as I have said, by Moses LJ and Kenneth Parker LJ. By way of introduction Moses LJ said this:

"Four weeks after his 17th birthday at 3.55 p.m., on 19 April 2012, the claimant was arrested on suspicion of robbery of a mobile phone on a bus. Shortly after he was taken to Battersea Police Station he asked that his mother be informed. That was not allowed. She did not learn that he was in custody for about four and a half hours after he had been arrested, at 8.30 p.m. She was not allowed to speak to him. The claimant was released after 11½ hours in custody, on 20 April 2012. One month later he was informed by letter that his bail was cancelled. No charges were ever brought against him. The claimant had never been in trouble before.

2. This first experience of the criminal justice system occurred not as a result of the police ignorance of the claimant's age or disregard of their obligations to children. The police applied Code C of the Code of Practice under the Police and Criminal Evidence Act 1984. Both the Police and Criminal Evidence Act 1984 and the Code permitted the police to treat a 17 year-old as an adult. As an adult, he had no unqualified right to let his mother know what had happened, nor did his mother have a right to speak to him. Under PACE and the Code an inspector was permitted to delay such contact in light of his belief that it would interfere with the investigation.

3. The experience of the claimant puts into sharp relief the issue which arises in this application for judicial review. The focus of the challenge is not on the Metropolitan Police, the second defendant, but rather on the first defendant, the Secretary of State for the Home Department. She has decided that she will not exercise the power, which she accepts she has (subject to approval by resolution of each House of Parliament), to revise the Code of Practice so as to distinguish the procedures applicable to a 17 year-old detainee from those applicable to an adult. This application raises the question whether it was lawful for the Secretary of State to refuse to revise the Code so as to prevent a future similar experience to that suffered by this claimant and, so the court was told, by many other 17 year-olds."

At paragraph 39 of his judgment Moses LJ said this:

"The guiding principle for safeguarding and promoting the welfare of children is described in Article 3(1) of the UNCRC:-

'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 should be of primary consideration.'"

Then at paragraph 43 the Moses LJ said this:

"The Secretary of State correctly points out that these provisions do not dictate how States, in their discretion, should secure adequate protection for 17 year-old detainees. General Comment of the UN Committee on the Rights of the Child No 10 draws attention to the discretion of States Parties. For example, there is no specific requirement for an appropriate adult in every case. But the significance of all of the relevant International Conventions are that they reveal a broad consensus that those aged 17 should be regarded as children, who must be treated differently from adults and sheltered by special protection designed to meet their best interests."

19. Although not an authority as such, Mr Willers then referred me to the document which Moses LJ's had referred in that last paragraph, which was the report by the Committee on the rights of the child, known as General Comment No 10, 2007, in which the Committee said this:

"4. Therefore, the objectives of this general comment are: [and the second bullet point is as follows]:

- To provide States parties with guidance and recommendations for the content of this

comprehensive juvenile justice policy, with special attention to prevention of juvenile

delinquency, the introduction of alternative measures allowing for responses to juvenile

delinquency without resorting to judicial procedures, and for the interpretation and

implementation of all other provisions contained in articles 37 and 40 of CRC."

Then at paragraph 10 the Committee said this:

"The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice, such as repression/retribution, must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety."

The importance of the decision in HC , submitted Mr Willers, was it applied to a decision by a Minister of general policy, rather than to the case of a particular child or children in a family which had been the subject of previous decisions.

20. Miss White submitted that the authorities relied upon were not appropriate to the circumstances of a case such as this. On this point I prefer the submission of Mr Willers. I see no reason why Article 8 should not be engaged in this case. However, the real issue in this case is whether young offender institutions from southwest England were treated significantly different from other young offenders in the rest of the country. Of course, all of these young offenders have the protection of Article 8.

21. Accordingly this claim involves not so much the question of whether or not Article 8 is engaged but whether it can be said that the claimant's Article 8 rights have been the subject of unwarranted interference having regard to the interference if any under Article 8 of the rights of the rest of the young offender institution population in England and Wales.

22. In this context perhaps Mr Willers' reliance on the case of Thlimmenos v Greece in the European Court of Human Rights of Human Rights decided on the 6th April 2000 is perhaps more apposite. It is not necessary to rehearse the facts of the case. I think I can refer to two passages in the judgment of the court. The first is at paragraph 44 from which I quote:

"The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, § 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different."

Then at paragraph 46:

"The next question to be addressed is whether Article 14 of the Convention has been complied with. According to its case-law, the Court will have to examine whether the failure to treat the applicant differently from other persons convicted of a serious crime pursued a legitimate aim. If it did the Court will have to examine whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be realised (see the Inze judgment cited above, ibid.)."

23. Of course that case was concerned with Article 14 rather than Article 8 of the Convention that Mr Willers realistically accepted that if he could not succeed under Article 8 he could not succeed under Article 14 and vice versa but the purposes of the statement of principle I consider that Mr Willers' point was well made.

24. For her part Miss White referred me to the relevant statutory provisions - always a good starting point - of the Crime and Disorder Act 1998. Section 37 provides that by:

"(1) It shall be the principal aim of the youth justice system to prevent offending by children and young persons."

She referred to section 41 which deals with the Youth Justice Board, subsection (5) reads:

"(5)The Board shall have the following functions, namely—

(a) to monitor the operation of the youth justice system and the provision of youth justice services;

(b) to advise the Secretary of State on the following matters, namely—

...

(ii) how the principal aim of that system might most effectively be pursued...

[Then moving own to(5)(i) to enter into agreements for) youth detention accommodation."

Then it makes various provisions for different types of such accommodation. Finally in(5(l) I quote:

"(l) annually—

(i) to assess future demand for secure accommodation for remanded and sentenced children and young persons

(ii) to prepare a plan setting out how they intend to exercise, in the following three years, the functions described in paragraphs (i) and (k) above."

25. Miss White referred me also to the decision of the Court of Appeal. In R (on the application Khatun & Ors v Newham London Borough Council [2005] QB 37. She relied in particular on two paragraphs from the judgment of Laws LJ at paragraphs 34 and 35 which were in the following terms:

"34. As I see it the best starting-point for consideration of this question is a passage from the speech of Lord Scarman in Re Findlay[6]. I need say nothing of the case's facts. Lord Scarman stated[7]:

'he [counsel] prayed in aid some observations of Cooke J. in the New Zealand case of CREEDNZ Inc. v. Governor General [1981] 1 N.Z.L.R. 172. The facts of that case bear no resemblance to this case. But the judge did consider the question of the proper exercise of an administrative discretion in a situation where a statute permits but does not require consideration of certain matters. The judge said, at p.183:

'What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision.'

These words certainly do not support Mr. Sedley's submission. But… the judge in a later passage at p.183, line 33, did recognise that in certain circumstances, notwithstanding the silence of the statute, 'there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by the ministers . . . would not be in accordance with the intention of the Act.'

These two passages are, in my view, a correct statement of principle."

At paragraph 35 Laws LJ said this:

"In my judgment CREEDNZ (via the decision in Findlay) does not only support the proposition that where a statute conferring discretionary power provides no lexicon of the matters to be treated as relevant by the decision-maker, then it is for the decision-maker and not the court to conclude what is relevant subject only to Wednesbury review. By extension it gives authority also for a different but closely related proposition, namely that it is for the decision-maker and not the court, subject again to Wednesbury review, to decide upon the manner and intensity of enquiry to be undertaken into any relevant factor accepted or demonstrated as such."

26. Miss White's submission was that the United States Convention on the right to a child informs proportionality under Article 8 and in this context she relied on the well-known case which has already been mentioned of the R (on the application of ZH Tanzania v the Secretary of State for the Home Department [2011] UKSC 4. She referred in particular paragraph 33 of the speech of Baroness Hale where she said this:

"We now have a much greater understanding of the importance of these issues in assessing the overall well-being of the child. In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mother's appalling immigration history and the precariousness of her position when family life was created."

That I think that is the passage that was referred to indirectly by Mr Willers in his citation of the authorities.

27. I accept Miss White's submissions on this point. In relation to the decision in HC , that is the decision of this court in the judgment of Moses LJ she made the following submissions. She said that it was clear from the facts of that case that if the police followed the Secretary of State's policy there would be an interference with Article 8 rights of the child by the police and that the court held that there was no justification for this and therefore the policy was unlawful. She submitted that this is not a case where the decision of the Board here rules out in Article 8 rights for a particular child being infringed. She submitted that it is not the decommission of itself that will cause the interference with a child's family rights. Article 8 in fact bites on the placement decision and in particular its effects will depend on other factors in play when the decision is made where to place a particular child. She said that the defendant accepts that under the statutory scheme the rights of the children must be taken into account when the Board exercises its functions. So against these authorities I now turn to consider the issues.

The Issues

28. These were not readily identifiable from the statements of case but both counsel accepted in argument that the claim could not succeed unless it was shown that the decommissioning of Ashfield were to have a very significant - and indeed the word "vastly" was used in argument - negative impact on the claimant or, in Mr Willers' submission, young offenders in the southwest of England generally in comparison to the effect on the rest of the young offender population in England and Wales. If this was established then Mr Willers submitted that having regard to the primacy of the rights of the interest of the child, the Board and the Secretary of State must look very carefully at the consequences of this having regard to any mitigating factors that were, as it were, built into the decision. So the second issue is whether in this event the Board gave these consequences the degree of scrutiny and consideration that a reasonable Board in its position ought to have given.

29. The next question is whether, if the matter had been given proper scrutiny and consideration, was it likely having rather to considerations of proportionality that the outcome would have been different? I put it in this way because Mr Willers accepted in argument, correctly in my view, that if it could not be shown that the outcome would probably have been different the claim must be fail either because the decision actually taken could not be described as "perverse" in the Wednesbury sense or for want of causation.

The effect of decommissioning Ashfield YOI

30. The argument for the claimant was that young offenders who lived in the southwest of England would be adversely affected to an extent vastly greater than the rest of the young offender population in England and Wales by the decommissioning of Ashfield. So far as the claimant is concerned the case is put by Mr Willers in his skeleton argument in this way:

"The claimant will be directly affected by the defendant's decisions as he will be transferred to another YOI within the secure estate which is located further away from his family in the southwest of England. It is generally recognised that rehabilitation and resettlement are made much more difficult if a young person is placed in a significant distance from his home and family. Visits from family members and professionals are less likely to occur, potentially leading to the young person being less able to engage positively with the secure establishment regime. The further away a young person is based from his or her family the more likely it is that relationships will breakdown during a young person's period in custody. Sustaining the relationship between young people and their families whilst young people are in custody has shown to be key to effective resettlement."

Turning more particularly to the claimant's personal circumstances, Mr Willers said these were described by his solicitor in the following terms. The claimant is 17. He was first detained at Ashfield on 29th October 2012 and his release date is 13th August 2013. The claimant suffers mental health problems and receives enhanced observations as a consequence of incidents of self-harm. The claimant's mother lives in Plymouth. She is not working, is in receipt of welfare benefits and has no transport of her own and relies on a Youth Offending Team (YOT) minibus to transfer her to Ashfield for monthly visits to see the claimant.

31. In his second witness statement Mr Grant has detailed the length of the journeys that the claimant's mother will have to undertake in order to visit her son if he is transferred to another institution. By way of example, if the claimant is transferred to YOI Parc, which is located 170 miles away from Plymouth, then his mother's journey by road will take 3 hours each way, whereas if he was transferred to Werrington, which is located 245 miles away from Plymouth the claimant's mother would have to embark upon a journey by road which would take four-and-a-quarter hours each way, assuming of course that she could obtain a lift in the YOT minibus. Or as Mr Grant explains in his second witness statement, she would have to set-off at about 6.00 am from home to embark on a 16 or 17 hour round trip by public transport, assuming of course that she could afford to do so without assistance from the Assisted Visits Scheme.

32. The claimant relies also on an equality impact assessment (EIA) which identified that young offenders in the southwest would be adversely affected by the decommissioning of Ashfield in these terms:

"Using placement data and additional qualitative sources a negative impact was identified for young males from the southwest who are likely to be placed further from home. This impact will be continually monitored for internal government process at the YJB."

33. There will be attached to this judgment a plan produced by the Board showing the locations of young offender institutions for male detainees in England and Wales. I should point out that it does not show the Seven Bridge which of course shortens the distance by road between southwest England and South Wales. The young offender institution at Parc is in South Wales near Bridgend.

34. I have already mentioned that in his first witness statement the claimant's solicitor, Mr Benjamin Grant, described the impact on him of Ashfield being decommissioned. He said this:

"[JM's] mother has agreed to act as his Litigation Friend for the purpose of these proceedings. JM does not have contact with his father. JM's mother lives in Davenport, Plymouth. She is not working and has a limited income from welfare benefits. She has no transport of her own and relies on the YOT minibus to transport her for her monthly visits to see [JM]."

He then gives figures for the distances from Plymouth to the various institutions involved:

"Plymouth is approximately 131 miles from Ashfield or about two-and-a-half hours by minibus. Bridgend is 168 miles or nearly 3 hours by minibus. Feltham, southwest of London, is 200 miles away or about 4 hours by road and Werrington is 245 miles away or four-and-quarter hours by road."

As he points out to visit an offender in either Feltham or Werrington for someone living in Plymouth would be very difficult and he explains, as I have already mentioned, that the round trip to Werrington for example, would something of the order of 16 or 17 hours. He also details the added travelling times if instead of going by road the claimant's mother has to travel by train. He says that:

"JM reports that he suffers from mental health difficulties, that he is currently held on the induction wing where he received enhanced observations as a consequence of incidents of self-harm. He, the claimant, reports that the anxiety caused by the potential closure of Ashfield has led him to self harm. He feels a strong attachment to Plymouth and fears being detained away from home."

35. Although the distances referred to by Mr Grant have been measured from Plymouth, a broadly similar picture would emerge for any location in Devon, Dorset or Cornwall with, of course, the longest journeys being for those further west in Cornwall.

36. In his second witness statement Mr Grant said that to go from Plymouth to Werrington by car would take but four-and-a-half hours, as I have already mentioned, as against two-and-a-half hours for Ashfield. That to go by train would involve leaving home in Plymouth before 6 o'clock in the morning and not arriving back home until 11 o'clock at night. That is why it has been described as a round trip of about 16 hours or so. The cost of going to Werrington by train, according to Mr Grant, is at least £170. He says that there is an Assisted Visits Scheme but these usually reimburse the visitor for expenses once incurred rather than providing the money in advance. That is little help to someone of very poor means. He says that although it is theoretically possible to obtain a payment in advance, to put it pithily the bureaucratic obstacles to this generally mean it is unworkable in practice. I see no reason to doubt that evidence.

37. Whilst the figures put forward by Mr Grant in respect of someone in a position of the claimant's mother, one can well imagine that they are reflective of the general position of families of young offenders who come from the southwest of England. I am in principle prepared to accept this evidence from Mr Grant which has not been contradicted.

38. The defendant's position about this is quite different. They point to the fact that the population of the under 18 secure estate, as it is known, has been falling since January 2009. In July 2012 there were 1,983 places available for male young offenders, but only 1,267 of those places were occupied. That is 64%. In September 2012 the Board assessed that there was a surplus capacity in the young offender institution estate of about 400 places.

39. When considering its future plans in September 2012 the Board took an initial decision to exclude the young offender institutions at Parc, which as I have said is near Bridgend in South Wales, Cookham Wood, which is on the Thames Estuary, and Feltham to the southwest of London. There is and could be no challenge to the decision to exclude these particular institutions for which there were very good reasons. Thus the Board was faced with the alternative of carrying 400 odd places that were not required and not foreseeably required or closing one or more young offender institutions or alternatively reducing places at several institutions. The evidence showed that closing a particular young offender institution is far more economical than reducing places at several institutions by closing down part of an establishment.

40. The Board identified five young offender institutions that might be suitable for decommissioning. They were:

(i) little Ashfield which had 360 places;

(ii) Hindley which was near Manchester which had 440 places; (iii) Wetherby in Yorkshire which had 396 places;

(iv) Warren Hill near Felixstowe on the Suffolk coast which had a 192 places;

And finally Werrington, near Stoke-on-Trent which had 160 places. However, since the reduction or rather the surplus capacity was of the order of 400 places the Board considered that Warren Hill and Werrington should effectively be treated together in order to produce a total of about 350 cases that could be potentially saved.

41. In the witness statement of Kevin Venosi, head of commissioning and supplier management at the Board, it was explained how it is far more efficient to decommission a whole establishment rather than reduce its size. He gave as an example the decommissioning a large under 18 institution of 440 places would save about £19 million, whereas cutting its capacity to 240 places would save only about £5 million. The Decommissioning Board agreed upon 12 criteria, by reference to which each establishment would be assessed, one of which was financial impact. They took the view that it was not appropriate to apply a scoring system because, as Mr Venosi explained:

"Of the complexity of the decisions and the numerous inter-dependencies."

42. Two other criteria considered by the Decommissioning Board amongst the 12 were existing capacity and occupancy rates and regional demand. In 2012 the Board's national structure was still based on the regional division of the country that had been formally adopted by the government. This divided England and Wales into 10 regions, one of which was Greater London. London and the southeast region were served principally by Feltham, which had 240 places, and Cookham Wood, which had 131 places. However, authority had already been given in principle to the expansion of Cookham Wood by the addition of a further 60 or so additional places. I have already mentioned that these two institutions were not candidates for decommissioning.

43. Mr Venosi said in his witness statement at paragraph 27:

"What was most striking about Ashfield compared to the other decommissioning options was that over three quarters of its population came from other regions. The information provided in the narrative analysed the occupancy rates of each institution by reference to region of origin of young people, which as I have explained is determined by the YOT which is responsible for them, the extent to which each YOI meets regional demand and the impact decommissioning would have on the Board's ability to meet regional demand in the future."

44. In relation to Ashfield that analysis included the following:

"(i) In June 2012, occupancy of Ashfield (main site) was 66%. Of the snap of those young people in Ashfield in June 2012, 41(21%) came from the southwest.

(ii) Of all placements into Ashfield (main site) between July 2011 and June 2012 only 18% were from the southwest, 45% were from London and 22% from the southeast. Thus Ashfield accepted considerably more young people from both London and the southeast than it did from the southwest.

(iii) As to the Phoenix Unit, a specialist unit for 24 young people, the home location of only 8% of the young people from July 2011 until June 2012 was in the southwest, 50% were from London, 16% from the southeast and 15% from the West Midlands."

At paragraph 28 he went on to say this:

"In contrast the other young offender institutions considered the decommissioning accommodated a considerably higher proportion of young people from their local area."

At paragraph 29:

"The impact on Ashfield's ability to meet regional demand was assessed as follows: 'Young people from London and the southeast are placed in Ashfield where they cannot be placed more locally ... the placement of young people from London in Ashfield may reduce slightly when Cookham Wood's rebuild is completed... It has been suggested that if Ashfield is decommissioned the contracted places at Parc could be increased to accept all Welsh young people and some young people from the southwest... Based on June 2012 occupancy... if Ashfield is decommissioned young people from the southwest could be placed at Werrington and young people from the London and the southeast who would have been placed at Ashfield could also be placed at Werrington. This in turn would lead to young people from the Midlands being placed more northwards into Wetherby and Hindley."

45. Whilst Ashfield was only two-thirds full, it was in many other respect a very good institution, with well equipped up-to-date buildings and which achieved high scores on many aspects of its performance.

46. Werrington, by contrast, was an older establishment in need of improvement. It was planned to invest £1.2 million in the 2012/13 financial year. Decommissioning it would save £7.8 million as against about £28 million for Ashfield. If Warren Hill was decommissioned as well as Werrington that would save a further £10 million. The occupancy level at Warren Hill at 2012 was about 70%, about 50% of whom came from the eastern region. The occupancy level at Werrington was 96% of whom 70% came from the West Midlands and 23% from the East Midlands.

47. Whilst the effect on young offenders from southwest England of the decommissioning of Ashfield was that they would be moved to an alternative institution that was considerably further away those from the London boroughs (56 in June 2012 as against 12 from the southwest) would have journeys of over 100 miles to Ashfield cut to well under 20 miles in nearly all cases. These are matters that would be self-evident to the Board on the information that was before them, without having to carry out any detailed research.

48. Whilst it is and was generally recognised that it is important for young people to be detained as close to their homes as is reasonably practicable, the evidence in this case shows that there are other factors which have an important part to play in a particular offender's placement. For example co-defendants are usually sent to different establishments. Members of gangs are separated. Offenders with particular requirements may have to be sent to a particular institution that can address them by way of example. Not all institutions can handle sex offenders.

49. The claimant's complaint is that the Board did not look at the position of young offenders in the southwest of England and elsewhere in sufficient detail, so as to be able to form a clearer view of the real extent of the adverse negative impact on those from the southwest, in comparison to the effects on other regions if different institutions were to be decommissioned.

50. Whilst I see the force of this argument, it seems to me it involves a request for precision in an area where precision does not exist. The figures available to the Board represented a snapshot of the young offender population in June/July 2012. Whilst these provided a broad indication of what the position might be, in say 12 or 24 months' time they could no more than that. However, what was reasonably clear was that the southwest generated a very small proportion of the overall number of young offenders in the country as a whole.

51. For the purposes of this hearing the defendants produced much more detailed figures of the impact of the decommissioning of the other institutions that were potential candidates for decommissioning. Whilst in qualitative terms these figures appear to show that if decommissioning of any of the other potential young offender institution was chosen instead of Ashfield, more young offenders would be placed further from their homes than would be the case if Ashfield were to be closed. However, I have reservations about these figures. First, they are binary in nature; that is to say they show simply whether a journey will be longer or shorter. Whether it is by 15 miles or 150 miles is not revealed by the summaries. This is a serious limitation in the summaries given that paragraph 44 of Mr Venosi's witness statement. Second, the distance are measured in miles as the crow files and so do not necessarily reflect journey times in practice by road.

52. These problems simply illustrate the difficulties inherent in the exercise that a claimant shows should have been carried out. It would be very difficult to devise a spreadsheet that would provide a meaningful analysis of the real impact on particular individual cases. For example, the distance between A and B may be only 50 miles by road, but there may be no public transport whatever or none of any use to the particular young offender's family to enable that journey to be made. As Mr Willers pointed out in argument, travel along the Suffolk coast, for example, is not easy.

53. I am not persuaded that it was unreasonable of the Board to adopt the rather broad-brush approach that it took. As I have said, the position was by definition impossible in future forecasting and delving into more detail could create as many questions as it answered. Its conclusion about the extent of the adverse impact on those from the southwest of England was not in my view unreasonable. To put it another way: I am not persuaded that the material available to the Board or which could have been available showed that the decommissioning of Ashfield would have a negative impact on young offenders from the southwest that were so very significantly greater than the overall negative impact on the rest of the young offender population in England and Wales by the same closure. However, in case I am wrong about this, I will consider the question of proportionality of the impact of the closure of Ashfield.

Proportionality

54. The issue here is whether the significant adverse impact on young offenders from the southwest was balanced by other considerations so as to make the decommissioning of Ashfield a proportionate option. It was the duty of the Board to advise the Secretary of State on the efficient management of the Youth Justice System. This plainly includes efficiency in terms of financial efficiency and I did not understand this to be challenged. I have already mentioned that decommissioning an establishment was far more efficient in financial terms than, say, reducing the number of places in two establishments by 50%. I have also mentioned that the saving by the decommissioning of Ashfield as against the decommissioning of Warren Hill and Werrington was of the order of £10 million. It is clear also from the evidence that there can be operational difficulties in splitting a site if it is to be split between young offenders and adult offenders.

55. In my opinion it was open to the Board to conclude that the negative impact on young offenders in the southwest, which they clearly was, consequent upon the closure of Ashfield, notwithstanding that it was a primary consideration was counterbalanced by the saving in overall efficiency in financial terms and in addition the fact that it was not without adverse effects on young offenders in other parts of the country, in addition even if individually the effects on those offenders would not be as great as they would be for some of the individual offenders coming from the southwest.

56. It is important to remember that we now live in times of financial austerity and financial considerations perhaps now weigh much more heavily than they did 10 years ago. The cuts to the Board's budget in recent years is not and cannot be the subject of challenge in these proceedings. In all these circumstances, I do not consider that it is the province of the court to substitute its own judgment (assuming that it could sensibly form one) for that of the Board which is effectually what the court is being asked to do by means of this application.

57. So if it was necessary for me to do so, I would conclude that the Board's decision to decommission Ashfield is not an option that can be held to be a disproportionate in terms of the significant adverse effects that it would have upon young offenders from the southwest of England.

58. Would the Board have reached a different conclusion if it had acted as the claimant says it should? For the reasons I have already given I do not consider that the claimant has shown, on the material before the court, on the balance of probabilities, that if the Board had carried out the type of in depth analysis contended for by the claimant that it would have reached a different conclusion. Whilst the material would have provided further indications of the comparable detriment to those in the southwest compared with those young offenders in the rest of the population of England and Wales, I do not consider that those educations would have been sufficiently compelling to cause the Board to reach a different conclusion.

Mitigating Factors

59. However, there was one point in Mr Willers' submissions that did give me pause for thought. He submitted that the Board should have specified a certain prerequisites that should have been put in place for the protection of those in southwest before a decision to close Ashfield was to be implemented, for example, no consideration was given it seems to how the considerable travel problems faced by people such as the claimant's mother and others might be mitigated, whether by provision of transport or a more effective method of advance travelled funding.

60. However, in my view, this point was not identified sufficiently clearly in the claim and as a result was not a point that was really addressed in the defendant's evidence. Although I consider that there is force in Mr Willers' submission on this point, I do not think it would be fair in the circumstances to take it into account in deciding upon the reasonableness of the Board's decision but I should make it quite clear that I regard the decision to decommission Ashfield without having taken steps to ensure that the families adversely affected by that closure, particularly those in the southwest, should be provided with appropriate assistance to be a witness in the decision-making process. Whilst I am not prepared to permit it to found a potential ground for relief in this case, for the reasons I have already given, in my view the Board would be well advised to take steps to close this potential avenue of challenge to any future decisions.

Causation

61. As I have already mentioned Miss White submitted that the decision to decommission Ashfield did not cause the difficulties faced by the claimant because other decisions would follow in the light of the decision to decommission Ashfield. That would govern precisely where the claimant was placed. I do not consider that this is a realistic submission. Whilst from a process perspective what Miss White submits is correct, I consider that the dominant cause of the present consequences to the claimant and others in his position is and was the decision to decommission Ashfield. However, this conclusion does not affect the result of this claim.

Conclusion

62. For the reasons which I have now given, this application for judicial review fails and must therefore be dismissed. I would not like to leave this judgment without thanking both counsel for submissions of extremely high quality and I am grateful to the solicitors for the help and organisation of the bundles for the trial. Thank you very much.

63. MR WILLERS: Thank you very much my Lord. Can I just take very briefly instructions on one particular point?

64. MR JUSTICE EDWARDS-STUART: Yes of course. Do you want me to rise?

65. MR WILLERS: No, not at all.

66. My Lord I am grateful for that. There was one point in the judgment, I just wonder whether or not I misheard what your Lordship said. It is a factual point and it does not make any difference to anything else I am going to say. But it was about the impact of the closure of Ashfield on the children from London and the southeast. I think I made a note that your Lordship said that the closure of Ashfield would result in the children from London and southeast having a considerably shorter journey than they initially -- the journey of families would have been of the order about 100 miles and reduced to about 20. In fact when the decision was taken to close Ashfield, the decommissioning narrative which your Lordship rightly quoted referred to the likelihood of the children from London Southeast being transferred to Werrington, would in fact, according to Mr Grant's evidence, be 161 miles - actually further than as opposed to much closer. It just transpires because of the reduction in the demand for places that many of those children now actually being closer to home.

67. MR JUSTICE EDWARDS-STUART: That I understood. What I was trying to illustrate was really that when one simply gets figures of the type that were given and I mean I understood them to be produced as a hypothetical example of the sort of work that could have been done at the type you indicated that these were the sort of results that might flow for them. It was simply to illustrate, that is the point.

68. MR WILLERS: My concerns have been clearly satisfied. Thank you.

69. MR JUSTICE EDWARDS-STUART: Yes Miss White?

70. MISS WHITE: Thank you my Lord. My clients are very grateful for the speed with which my Lord has delivered the judgment in this case.

71. MR JUSTICE EDWARDS-STUART: I meant to say in the judgment and I forgot that I was doing it straightaway because I appreciate that this is a matter which is of obvious importance to your clients and the general settlement of people's concerns whether for good or ill generally.

72. MISS WHITE: Absolutely my Lord. I make no application.

73. MR JUSTICE EDWARDS-STUART: Thank you.

74. MR WILLERS: I am very grateful to my learned friend for there being no application. Can I just ask for one additional order, my Lord, that is the claimants - that is in plural - publicly funded costs are subject to a detailed assessment?

75. MR JUSTICE EDWARDS-STUART: Yes, I am happy to direct that.

76. MR WILLERS: And there is no application for permission.

77. MR JUSTICE EDWARDS-STUART: Very well. Thank you very much.