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03 JUL 2013

R (on the application of T) v (1) Secretary of State for Justice and (2) Birmingham Magistrates’ Court [2013] EWHC 1119; (2013) PLLR 074

Criminal procedure - children - detention - magistrates' courts - breach of bail - learning difficulties - proximity to adult cells - section 31 Children and Young Persons Act 1933 - meaning of ‘association' - protection of vulnerable persons - Article 8 European Convention on Human Rights - section 149 Equality Act 2010

The detention of a 15 year old in cells adjacent to those in which adults were held, in an environment where the young person could hear and see adult detainees, was in breach of section 31 of the Children and Young Persons Act 1933.

3 May 2013

Administrative Court

Sir John Thomas (President), Cranston J

(1)        The appellant (T), a fifteen year old boy with learning difficulties, was detained following breach of a bail condition. Following his arrest, he was taken to the premises of the second defendant (BMC). These were controlled by a contractor. BMC is furnished with segregated cells designed for the detention of young people, but these were, at the material time, being refurbished. T was instead placed in a cell opposite the custody suite. It had a glazed door which allowed him to be observed. On being taken to an interview room, T saw adult prisoners and was said to have been very distressed by the noisy environment.

(2)        T sought judicial review of the conditions of his detention, on the grounds that it breached section 31 of the Children and Young Persons Act 1931; Article 8 of the European Convention on Human Rights; and section 149 of the Equality Act 2010.

(3)        Cranston J held: That section 31 of the Children and Young Persons Act 1931 required that arrangements be made to ensure that young people in custody did not associate with detained adults. This applied to young persons being conveyed to and from court and those waiting to attend court or present after it. Thus it included witnesses and those on bail. The meaning of ‘associate' was not so narrow as to require meaningful social interaction or communication. The object of the section was to avoid the moral risk of children coming into contact with adult detainees. The risk would vary according to the age and vulnerability of the young person in question. As a minimum it required that children should be prevented from speaking, communicating or interacting with adult detainees, including not sharing cells or interacting outside cells. The requirements could, though, go further, and could apply where the young person is in transit or simply in physical proximity to adult detainees. It did not, however, require cells for the detention of young persons to be in a separate building or custody suite. The question of compliance was highly fact-specific [33], [40] - [41].

(4)        That there was no evidence of proper steps having been taken to avoid the risk to T during his detention, in particular in relation to his age and specific vulnerabilities. That T was placed in a cell with a glazed door opposite the custody desk was not sufficient to avert the risk. This amounted to a breach of section 31 of the 1933 Act [42] - [47].

(5)        Although Article 8 of the European Convention on Human Rights was engaged, the claim failed, as T's detention was as a result of the lawful decision of the police to detain him. The contractor responsible for BMC had no choice but to detain T and did not have the discretion to release him [51].

(6)        It was clear that SSJ had had due regard to the duty owed to young persons under section 149 of the Equality Act 2010. This was clear from the service specifications, contract user guide and standard operating procedures which the contractor running the custody suite were required to follow [54].

Application granted

Key Paragraphs

[2] - [9] - The parties

[10] - [12] - The claimant's detention at Birmingham Magistrates' Court

[13] - [19] - Birmingham Magistrates' Court

[20] - [47] - The ‘association' ground: section 31 of the 1933 Act

[48] - [51] - Article 8 ECHR

[52] - [54] - The equality duty

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