21. Memorandum by Mark Dawes, Director
& National Coach Tutor, NFPS Ltd
"Injustice anywhere is a threat to
justice everywhere".
Martin Luther King (1963)
On Wednesday 13 June 2007 the Ministry of Justice
laid before Parliament a Statutory Instrument (SI 2007, No 1709)
that seeks to amend the rules governing the use of force within
Secure Training Centres (STCs). The Ministry of Justice is proposing
to broaden the circumstances in which children can be forcibly
restrained. The Secure Training Centre (Amendment) Rules 2007
were laid before Parliament on 13 June and come into effect on
6 July. They enable a trainee to be removed from association in
the interests of good order and discipline; and permit physical
restraint to be used to ensure good order and discipline.
The YJB have clarified their position on the
submission of the new SI by stating that "Custody officers
have the duty to ensure good order and discipline (as set out
in the primary legislation the Criminal Justice and Public Order
Act 1994). However, the rules governing the use of restraint in
STCs do not include a provision empowering custody officers to
use restraint to maintain "good order and discipline".
This contrasts with the situation in other environments such as
young offender institutions (YOIs) under Prison Service rules,
and in schools (2006 Education and Inspections Act s93)."
Now I think we can all agree that it is important
to maintain good order and discipline, especially in a prison
or other secure establishments, to prevent greater harms occurring,
ie, riots or large scale fights that would expose children, young
people and indeed the staff to the risk of harm and/or serious
damage to property. That would be consistent with the law. However,
the proposed SI could lead to an increased risk of children being
injured if the Government merely implement this SI without a full
review of the current training that staff receive in physical
restraint and how that training is managed as part of a quality
management system. Therefore, the question we have to ask is,
is this a necessary piece of legislation or is it another beaurocratic
attempt at legislative enforcement in absence of competent training?
In short, will it make a difference or will kids still continue
to be at risk of dying in secure estates?
We shouldn't lose sight of the fact that this
amendment to the STC rules come almost immediately after inquests
into the deaths of two children who were detained in Secure Establishments.
One, 15-year-old Gareth Myatt, died in April 2004 while being
restrained by three adult males in Rainsbrook STC, Northants.
The other, 14-year-old Adam Rickwood, hung himself hours after
being manhandled at Hassockfield STC, near Durham, in August the
same year.
Gareth Myatt was restrained for refusing an
order from staff to clean a sandwich toaster. For that the 15
year-old teenager, who weighed less than 45kg (just over 7 stones),
was restrained by staff using a "double seated embrace"
technique, which resulted in the young boy dying of positional
asphyxia.
During the inquest into Gareth Myatt's death,
the jury heard that the Youth Justice Board (the organization
responsible for overseeing the youth justice system in England
and Wales monitoring the STC's and to ensure that custody for
young people is safe) had been warned about the excessive use
of force at Rainsbrook but had failed to take action. As a result
jury's verdict, delivered last week, declared that the YJB's failure
to respond to the warning contributed to Myatt's death.
For Adam Rickwood, the youngest child ever to
die in penal custody in the UK, it was his refusal to go to his
room that got him into trouble.
Adam was found hanging in his room in Hassockfield
STC at around midnight on 8 April 2004. In the hours preceding
his death he was subjected to restraint by four male officers.
During the restraint they used a "nose distraction"
technique, described as a "karate-like chop" to his
nose. This was said to have caused Adam to have a nose-bleed for
an hour. There was no suggestion that any of the criteria set
out in the STC Rules had been met that could have justified Adam's
restraint. After his death a "statement" was found in
his room in which he described in his own words what had happened
to him:
"My [Adam Rickwood's] Statement [to the
authorities]
On the 8th August at approx 6.50pm, I was
sat at the table on the wing 2 Bravo. And my friend was messing
about, so he was put in his cell for 30 minutes (time out). When
my friend was in his cell he asked me to go over to his door.
When I went over he slid a piece of paper under the door and asked
me to give it to a female member of staff.
When I gave the paper to her she told me to
get in my room. I asked why and she said "Just go in"
then at that point I refused because there were no explicit reason
for this. Then she called for first response (assistance from
other staff). When the other staff came they all jumped on me
and started to put my arms up my back and hitting me in the nose.
I then tried to bite one of the staff because they were really
hurting my nose. My nose started bleeding and swelled up and it
didn't stop bleeding for about one hour and afterwards it was
really sore. When I calmed down I asked them why they hit me in
the nose and jumped on me. They said it was because I wouldn't
go in my room so I said what gives them the right to hit a 14-year-old
child in the nose and they said it was restraint."
Following the increase in concern about children
in residential care during the early 1990's, the Government responded
by commissioning a number of enquiries (there were 10 public enquiries
between 1990 and 1996) including the Utting report in 1991 and
the Warner report in 1992. In response to the exposure of this
large-scale institutional abuse of children and young people Government
departments have issued extensive guidance aimed at promoting
and protecting children's rights. The Utting report concluded
that the implementation of the Children Act 1989 (in 1991) would
be sufficient to prevent the likes of Pindown happening again.
Interestingly enough, in 2003, the year before
Rickwood died, staff at Hassockfield, which holds 40 children,
had used restraint 972 times!!! That equates to 24.3 restraints
per child per year or 81 restraints a month!!
However, the proposed changes in the new Statutory
Instrument (SI 2007, No 1709) which seeks to amend the rules governing
the use of force within Secure Training Centres (STCs), seem to
have been devised to sanction the use of the circumstances that
would give rise to the use of restraint that would not be allowed
under the Children Act 1989. As such there is an issue here of
conflicting rights should the new proposed Statutory Instrument
be implemented. Furthermore, the new propose Statutory Instrument
seems to fly in the face of a recent ruling by Mr. Justice Munby
in 2002 regarding how the Children's Act applies to Young Offenders
Institutions.
THE CHILDREN
ACT 1989 AND
PHYSICAL RESTRAINT
In Volume 4, Section 1.83 of the Children's
Act it states:
"Physical restraint should be used rarely
and only to prevent a child harming himself or others or from
damaging property. Force should not be used for any other purpose,
nor simply to secure compliance with staff instructions."
THE CHILDREN
ACT AND
YOUNG OFFENDER
INSTITUTIONS
In November 2002, the High Court ruled that
the Children Act 1989 also applies to children in Young Offender
Institutions and such children therefore have the same rights
to have their welfare protected as others up to the age of eighteen.
Mr. Justice Munby's decision was in response
to a legal challenge brought by the Howard League for Penal Reform
who challenged the Home Office's insistence that Young Offender
Institutions were immune from the Children Act. The Howard League
said that segregation and physical restraint inflicted under harsh
regimes contributed to high levels of self-harm and suicide. According
to the Howard League young people in prisons are routinely treated
in ways which would trigger child protection investigations in
other settings.
The proposed Statutory Instrument submitted
by the Ministry of Justice also seems to challenge the United
Nations Convention on the Rights of the Child, and in particular,
Article 19 which states:
"Children shall be protected from all
forms of physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including
sexual abuse, while in the care of their parents or of any other
person. Child protection should include support for the child
and their carers, prevention, identification, reporting, referral,
investigation, treatment, judicial involvement, and follow up
of instances of child maltreatment."
The proposed change by the Ministry of Justice
basically flouts the protection offered by the Children's Act
1989 and Article 19 of The United Nations Convention on the Rights
of the Child, both designed to protect children from state sanctioned
abuse as well as placing a positive obligation on state authorities
to do so.
I would also go so far as to propose that the
proposals, should they lead to more deaths that could have been
prevented had this SI not been accepted, is a breach of Article
2 of the Human Rights Act 1998 by a Government who has failed
to uphold the basic right to life—an Absolute Right, which
cannot be derogated against. Yet this is what the proposed SI
will achieve.
"The difference between a police state
and a state where the police are efficient, but democratically
controlled, is a mighty thin one."
Lord Scarman (report on the Brixton Riots, 1981)
Proposing to amend the current legislation in
relation to STC's and YOI's, basically contradicts Mr. Justice
Munby's decision and the very reasons why the Children's Act,
the United Nations Convention on the Rights of the Child and the
Human Rights Act came into existence. If these proposals are allowed
to be pushed through by an apathetic and inert society we are
all guilty of allowing the state to sanction child abuse against
some of society's most vulnerable children which is very possibly
likely to lead to more restraint, damage and harm and ultimately
more deaths. In short, it puts STC's and YOI's above the law.
That itself is an injustice.
As a result of concerns about unlawful practices
that had emerged at the inquest, Bhatt Murphy solicitors, the
lawyers for Adam's Rickwood's mother, wrote to the Youth Justice
Board (YJB) and the Secretary of State for Justice to ensure that
children in STCs were being treated in accordance with the law.
At the inquest into the death of Adam Rickwood
the YJB's lawyers accepted that the analysis of family lawyers
was correct, namely that force used in order to ensure compliance
with staff instructions for good order and discipline was unlawful.
However, in response the YJB enclosed a letter
that had been sent to STC's indicating that although presently
restraint could not lawfully be used to ensure compliance with
staff instructions that they were working with the Ministry of
Justice to amend the rules and that changes to the STC rules were
imminent. And on 13 June 2007, without consultation or any debate
whatsoever, the Statutory Instrument (SI 2007, No 1709) which
seeks to amend the rules governing the use of force and designed
to dramatically widen the circumstances under which restraint
can "lawfully" be used against children within Secure
Training Centres, was laid in Parliament.
Staff can only be as competent as the training
and supervision given to them, and, it is possible that had the
YJB done it's job properly, in monitoring and supervising the
Secure Estates and responding to the concerns and warnings presented
to them in the first place, they would not need to propose this
new piece of legislation to make others accountable for their
failings. In contrast they could have ensured that the staff were
given the appropriate information, instruction, supervision and
training (as required under current Health and Safety statute)
and that the management were competent enough to have developed
safer systems of work and safer working practices consistent with
current legislation.
That is of course provide that the YJB are competent
at doing what they are supposed to do.
Interestingly enough we e-mailed the YJB on
the 21st March 2007 offering to make our services and our research
resource to them in response to requests that we do so from a
number of staff who work in secure estates who feel that the information
we provide and deliver should be made available to the YJB.
They respectfully declined our offer of assistance.
Mark Dawes
Director & National Coach Tutor—NFPS Ltd
8 August 2007
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