View source for ICLR R (Children's Rights Alliance for England) v SSJ (2013) EWCA Civ 34, (2013) MHLO 16

''CHILDREN — Young offender — Secure training centre — Claimant seeking order for provision of information about unlawful uses of restraint techniques on secure training centre trainees to persons potentially affected — Whether failure to provide information denial of constitutional right of access to courts — Whether failure to provide information infringing trainees’ Convention rights — Human Rights Act 1998, s 6, Sch 1, Pt I, arts 3, 6, 8''

'''Regina (Children’s Rights Alliance for England) v Secretary of State for Justice (Equality and Human Rights Commission intervening)'''

'''[2013] EWCA Civ 34;  [2013] WLR (D)  57'''

CA :  Laws, Sullivan, Black LJJ:  6 February 2013

The constitutional right of access to the courts was properly to be understood as a duty owed by the state not to place obstacles in the way of access to justice, and did not entail a positive duty to seek out and notify individuals with potential claims against the state; nor was there anything in the Strasbourg jurisprudence on articles 3, 6 and 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms to justify the imposition of such a duty.

The Court of Appeal so held in a reserved judgment dismissing the appeal by the claimant, the Children’s Rights Alliance for England, from the order dated 11 January 2012 of Foskett J [2012] EWHC 8 (Admin) dismissing the claimant’s application for judicial review seeking an order that the defendant, the Secretary of State for Justice, provide or facilitate the provision of information to stated categories of children as to the illegal use of restraint techniques on them when they were detained in secure training centres in the United Kingdom. The companies operating those centres under contract with the Secretary of State, G4S Care and Justice Services (UK) Ltd and Serco plc, participated in the proceedings as interested parties. The Equality and Human Rights Commission was permitted to intervene in the appeal in order to advance arguments based on Convention rights unconfined by the limitation to “victims” on standing to bring proceedings imposed by section 7(1) of the Human Rights Act 1998.

''LAWS LJ'' said that it was undisputed that at least until July 2008 there probably was widespread unlawful use of bodily restraint techniques upon many of the children and young persons in the secure training centres, and that very few, if any, of them appreciated at the time that what was done to them was unlawful. However, the claimant had not demonstrated that the Secretary of State took active steps to prevent exposure of any concerns about the use of restraint for impermissible purposes, so as to impede trainees’ access to justice. The claimant contended for an obligation on the Secretary of State to inform those potentially affected by the unlawful use of force during the relevant period that they might have been so affected. But there was no learning suggesting that a private litigant might in any circumstances owe a duty to seek out or notify another with a potential claim against him. To impose a positive duty on the state to do so would be equally discordant with the common law’s adversarial system of justice. There was no principled basis for selecting some potential litigants to enjoy a distinct advantage over others lacking the information necessary to mount a claim. Any such selection would be arbitrary. The constitutional right of access to the courts was to be understood as a duty owed by the state not to place obstacles in the way of access to justice. That duty had not been breached in the present case. The judge had correctly distinguished as a matter of principle between putting up an obstacle to accessing justice and not positively inviting those potentially affected to consider accessing justice. The Secretary of State’s refusal to provide the information sought could not be categorised as irrational (based on Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) if the principle of access to justice did not require it to be given. Further, it was not irrational on the facts, including the availability of relevant material in the public domain. There was no Strasbourg jurisprudence recognising a positive obligation on the state to take steps to identify and contact potential victims of breaches of Convention rights under article 6 or otherwise. It followed that the court could not declare that the kind of relief sought in the present case was validly claimed on the basis of Convention rights: R (Ullah) v Special Adjudicator [2004] 2 AC 323. Accordingly, the appeal should be dismissed.

'''SULLIVAN''' and '''BLACK LJJ''' agreed.

'''Appearances:''' Richard Hermer QC and Stephen Broach (instructed by Bhatt Murphy) for the claimant; James Strachan (instructed by Treasury Solicitor) for the Secretary of State; Jason Beer QC (instructed by DWF Solicitors) for the interested parties; Jason Coppel (instructed by Legal Director, Equality and Human Rights Commission) for the intervener.

'''Reported by:''' Alison Crail, Barrister.

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