Criminal Justice and Courts Bill 2014
Committee Stage, House of Lords
Briefing in support of amendments relating to whole life prison
orders, secure colleges and judicial review
14 July 2014
For more information, please contact:
Parliamentary lead: Finola Kelly, Head of Parliamentary and Public
Affairs
finola.kelly@equalityhumanrights.com
DD: 0207 832 7826
Legal lead: Nony Ardill, Senior Lawyer
DD: 020 7832 7857
Nony.Ardill@equalityhumanrights.com
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1. Introduction
This briefing relates to four aspects of the Criminal Justice and Courts
Bill:
 Opportunity for review of whole life prison orders (proposed new
Clause)
 Offences involving ill-treatment or wilful neglect (Clauses 17 – 22)
 The use of physical restraint in secure colleges (Schedule 6)
 Proposed reforms to judicial review (Clauses 64, 67 and 68)
2. Opportunity for review of whole life prison orders
New Clause: Commission’s recommendation
Amendment 7 in the Marshalled list of Amendments put forward by Lord
Lester of Herne Hill should be supported.
Explanation
Clause 1(2) of the Bill would increase the maximum penalty for certain
offences under the Terrorism Act 2000 from 10 years' to life
imprisonment. This raises the question of whether the law currently
provides sufficient opportunity for review of a whole life order, in light of
the judgment of the Grand Chamber of the European Court of Human
Rights (ECtHR) in the case of Vinter v UK1 and the decision of the Court
of Appeal in the recent cases of R v McLoughlin and R v Newell.2
The purpose of the new Clause is to amend the existing statutory
framework to place beyond legal doubt that a mechanism is available for
reviewing a whole life order. It would provide that a prisoner who is
subject to a whole life order can, after 25 years in custody, apply to the
Parole Board for a review of the continued justification for the order. If
the Parole Board is satisfied that the prisoner has made such
exceptional progress towards rehabilitation that there is no longer
justification for a whole life order, it could substitute a determinate tariff.
Our analysis
In the case of Vinter v UK, the European Court of Human Rights
(ECtHR) considered that, for life sentences to remain compatible with
Article 3 of the European Convention on Human Rights (the
Convention), there had to be a possibility of release and a possibility of
1
2
Vinter and others v the United Kingdom [2012] ECHR 61, 55 EHRR 34, (2012) 55 EHRR 34
R v Newell; R v McLoughlin [2014] EWCA Crim 188, 18 February 2014
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review in both theory and in practice. Currently, under section 30 of the
Crime (Sentences) Act 1997, prisoners on a 'whole life order' cannot be
released except at the discretion of the Secretary of State for Justice, on
compassionate grounds. The Court held that this did not offer sufficient
legal certainty.
The Court went on to say that the release of life prisoners should
depend, for example, on whether there were still legitimate penological
grounds for their continued detention and whether they should continue
to be detained on grounds of public protection.
In the McLouglin and Newell sentencing appeals, the Court of Appeal
held that the current regime under section 30 is compatible with Article 3
of the Convention because the Secretary of State is not restricted to the
medical grounds set out in the Prison Service Order (PSO)3 but is under
a public law duty to take into account all exceptional circumstances.
However, in our view the ECtHR is unlikely to find the Court of Appeal’s
reasoning compatible with its own reasoning in Vinter v UK. The ECtHR
emphasised the need for a system which provides for review of the
continued appropriateness of a whole life order, and which gives a nonexhaustive list of the exceptional circumstances that are capable of
leading to release under section 30 of the 1997 Act (not limited to the
final stages of a terminal illness). The current PSO effectively tells
prisoners that their only hope of release is when they are on their
deathbed.
The Commission agrees with the Joint Committee on Human Rights
(JCHR)4 that legal certainty could be achieved relatively simply by
amending the existing statutory framework in the way set out in the
proposed new Clause.
Amendment 7 in the marshalled list of Amendments
Insert the following new Clause—
“Review of whole life orders
After section 30 of the Crime (Sentences) Act 1997, insert—
3
The PSO is a mandatory instruction issued by the Secretary of State for Justice. PSO 4700 Chapter
12 sets out the circumstances in which a prisoner on a whole life order may apply for compassionate
release on medical grounds.
4
See paragraphs 1.16 - 1.30 of Legislative Scrutiny: (1) Criminal Justice and Courts Bill and (2)
Deregulation Bill, JCHR Fourteenth Report of Session 2013-14
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“30A
(1)
Review of whole life orders
A prisoner who is—
(a) the subject of a whole life order made under—
(i) section 269 of the Criminal Justice Act 2003, or
(ii) section 82A(4) of the Powers of Criminal Courts
(Sentencing) Act 2000, and
(b) has been in custody for 25 years,
may apply to the Parole Board for a review of the whole life order.
(2) If on an application under subsection (1) the Parole Board is
satisfied that the prisoner has made such exceptional progress
towards rehabilitation that a whole life order is no longer justified,
it shall substitute a determinate tariff for the whole life order.
(3) No fresh application may be made by a prisoner under subsection
(1) before the period of five years has elapsed since the Parole
Board’s determination of the prisoner’s previous application.””
3. Offences involving ill-treatment or wilful neglect
Commission’s recommendation
A new offence should be created to enable the prosecution of informal
carers who ill-treat or wilfully neglect a person in their care, regardless of
the person’s mental health or mental capacity status.
Our analysis
The Commission welcomes Clauses 17 to 22 of the Bill which would
introduce new offences of ill-treatment or wilful neglect to enable the
prosecution of care workers and care providers who ill-treat or wilfully
neglect adults and children in formal care settings .
However, we consider that, in order to provide appropriate protection for
the human rights of all those reliant on care, the offence of ill-treatment
or wilful neglect should apply irrespective of whether it occurs in formal
health and social care settings or informal care settings and regardless
of the victim’s mental health or mental capacity status.
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At present the law only provides for prosecution of individuals ill-treating
or wilfully neglecting someone for whom they are providing informal care
if the person lacks mental capacity as defined by the Mental Capacity
Act 2005, or is mentally disordered as defined by the Mental Health Act
1983. The Commission believes that this protection should be extended
to all victims of ill treatment or neglect in informal care settings.
Ill-treatment and wilful neglect often amount to a breach of the human
rights of users of health and social care service and it is appropriate that
all perpetrators should be held to account.
Evidence from the Commission’s Disability Harassment Inquiry5 found
that many disabled people experiencing ill-treatment or wilful neglect do
not lack mental capacity and are not mentally disordered. Applying the
new offence to informal care arrangements would allow consistency in
prosecuting perpetrators of ill-treatment or wilful neglect irrespective of
the victim’s mental capacity or mental health status and ensure better
protection of the human rights of people receiving informal care.
The Disability Harassment Inquiry also found that abuse and neglect of
disabled people sometimes takes place in their own homes and is
sometimes carried out by people living with, or visiting, the victim.
The Commission's inquiry into older people and human rights in home
care6 provided evidence of serious, systematic threats to the dignity,
autonomy and safety of older people using home care services that
amounted to human rights breaches:
 Some older people received inadequate support with food and
drink, leading to severe weight loss and dehydration.
 Some older people were neglected because care workers had been
allocated insufficient time to complete everything in the care plan; it
was common for care visits to be scheduled for only 15 minutes.
Workers under pressure sometimes carried out their tasks in a
distracted and rushed way, with a particular impact on those with
dementia.
 Some older people reported a lack for respect for personal privacy
when intimate tasks were carried out.
5
EHRC (2012) Hidden in plain sight. Inquiry into disability-related harassment. Manchester: Equality
and Human Rights Commission. Page 82
6 EHRC (2011) Close to Home: An inquiry into older people and human rights in home care
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 Some older people had no control over the timing of their visits, with
examples of individuals having to stay in bed for long periods of
time in soiled incontinence pads.
4. The use of physical restraint in secure colleges
Commission’s recommendation
Schedule 6 should be amended to limit the use of physical force in
secure colleges to preventing escape or injury or the commission of an
unlawful act and require force to be used only as a last resort.
Explanation
Clause 29 of the Bill adds secure colleges to the list of establishments
which the Secretary of State may provide for young people remanded to
custody or detained on conviction for an offence. Paragraph 8 of
Schedule 6 provides that, in relation to detained persons, the custodial
duties of a secure college custody officer at a contracted-out secure
college are:
(a) to prevent their escape from lawful custody
(b) to prevent, or detect and report on, the commission or attempted
commission by them of other unlawful acts,
(c) to ensure good order and discipline on their part, and
(d) to attend to their well-being.
Paragraph 10 of Schedule 6 permits a secure college custody officer, if
authorised by college rules, to use reasonable force where necessary in
carrying out functions under paragraph 8, or paragraph 9 (the power to
conduct searches).
Paragraph 10 enables the Secretary of State to make “secure college
rules” through secondary legislation that allow the use of force to
maintain good order and discipline.
This Schedule should be amended to prevent the ability to use physical
force for the purposes of ensuring good order and discipline or to attend
to a detained person's well-being. Schedule 6 should restrict the ability
to use physical force to the carrying out of three functions: prevention of
escape, prevention of the commission of an unlawful act and prevention
of injury to the young person or to others. It should also limit the level of
force to be used and require force to be used only as a last resort.
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Our analysis
The use of force against young people to maintain good order and
discipline has already been considered by the Court of Appeal in the
case of C,7 in which the Commission intervened. The court decided that
secure training centre rules authorising use of force to maintain good
order and discipline were incompatible with Article 3 (freedom from
inhuman and degrading treatment) and Article 8 (the right to respect for
family and private life) of the Convention.
In our view the Bill as drafted, by purporting to authorise the use of force
against children and young people to maintain good order and discipline,
is incompatible with Articles 3 and 8 of the Convention. If primary
legislation contemplates the use of force in these circumstances, there is
a real danger that force could be used unlawfully. According to the Court
of Appeal in the case of C, that is precisely what happened in secure
training centres.8
In the Commission’s analysis, paragraph 10 of Schedule 6 is also in
breach of the UK’s international treaty obligations under the UN
Convention of the Rights of the Child and the UN Convention against
Torture. Both UN Committees recommend that restraint against children
is used as a last resort and exclusively to prevent harm to the child or
others and that all forms of physical restraint for disciplinary purposes
should be abolished.
5. Proposed reforms to judicial review
 Clauses 64, 67 and 68
Clause 64 - Commission’s recommendation
Amendments 70, 71, 72 and 73 in the Marshalled List of Amendments
put forward by Lord Pannick should be supported
Explanation
Clause 64 of the Bill would amend Section 31 of the Senior Courts Act
1981. As currently drafted, Clause 64 would require permission for
judicial review to be refused, or a remedy to be withheld, if the High
Court or Upper Tribunal considered it ‘highly likely that the outcome for
7
R(C) v Secretary of State for Justice [2008] EWCA Civ 882
The Minimising and Managing Physical Restraint programme is now being introduced in Secure
Training Centres. It places emphasis on appropriate non-physical de-escalation and deceleration
techniques to ensure that restraint is only used when no other intervention is possible or appropriate.
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the applicant would not have been substantially different’ if the conduct
of the public body that is the subject of the case had not occurred.
Currently, the courts apply a test of 'inevitability'.
The purpose of Lord Pannick's amendment is to retain the discretion of
the High Court to grant a remedy, even if the court thinks it highly likely
that the outcome for the applicant would not have been any different had
the public body's conduct not occurred. The amendment also removes
the requirement on the High Court or Upper Tribunal, on request by the
defendant, to consider at the application stage whether the outcome for
the applicant would have been substantially the same had the conduct
not occurred, and to refuse permission for the judicial review or appeal
to proceed if this is the case.
Our analysis
In its submission to the recent JCHR inquiry into the proposed judicial
review reforms,9 the Commission made clear that judicial review is not a
system of appeal, but a process by which the High Court scrutinises the
lawfulness of decisions made by public bodies. It is in the public interest
to ensure that administrative decisions are taken lawfully. Remedies in
judicial review are always discretionary: for example, the court can
declare a decision to be unlawful but refuse to quash it.
The lawfulness of decision-making by public bodies is particularly
relevant to enforcement of the public sector equality duty (PSED). This is
of interest to the Commission given its statutory role in regulating the
duty. The PSED requires public authorities to have due regard to the
need to eliminate discrimination, advance equality of opportunity and
foster good relations when carrying out their functions.10 It is a duty to
consider, rather than a duty to achieve any particular outcome.
In the case of Bracking,11 the Court of Appeal confirmed the central role
of the PSED within policy formulation and emphasised that failing to
comply with it would make a decision unlawful:
‘It seems to me that if a decision is reached without due regard to
the PSED then it is an unlawful decision and, subject to any
overarching discretionary features, the decision should be
quashed.’ (per Lord Justice McCoombe, para 69)
10
11
Section 149 of the Equality Act 2010
Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
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Unless Clause 64 is amended, the courts may find themselves obliged
to reject many judicial review applications based on non-compliance with
the PSED. This would undermine the enforceability of the duty and its
effectiveness ‘as an integral and important part of the mechanisms for
ensuring the fulfilment of the aims of anti-discrimination legislation’.12
The Commission also shares two other concerns raised by the JCHR:
 The lowering of the threshold from 'inevitable' to ‘highly likely’ may
give rise to breaches of the right of access to court under Article
6(1) of the Convention.13
 The lower threshold risks turning the permission stage of judicial
review proceedings into a full dress rehearsal of the substantive
claim, as parties will need to argue whether the procedural flaw
would make any substantive difference to the outcome.14
Amendments 70, 71, 72 and 73 in the Marshalled list of
Amendments
Page 64, line 35, leave out “must” and insert “may”
Page 64, line 37, leave out “not” and insert “decide not to”
Page 65, line 4, leave out subsection (2)
Page 65, line 26, leave out subsection (5)
Clause 67 - Commission’s recommendation
Amendments 74 in the Marshalled List of Amendments put forward by
Lord Pannick should be supported.
Explanation
Clause 67 of the Bill would establish a presumption that interveners in a
judicial review would pay any costs incurred by another party because of
the intervention, unless there are exceptional circumstances.
The purpose of the amendment is to reverse this presumption, meaning
that interveners would only have to pay the costs of another party in
12
Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345,
para 26
13 Joint Committee on Human Rights; The implications for access to justice of the Government’s
proposals to reform judicial review; Thirteenth Report of Session 2013-14. Para 44
14 Ibid para 46. This concern has also been raised by the Constitution Committee in its report on the
Criminal Justice and Courts Bill, 2nd July 2014
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exceptional circumstances, by reference to criteria set out in the rules of
the court.
Our analysis
Clause 67 would have a deterrent effect on prospective interveners. The
potential value of interventions in assisting the court has been
acknowledged by the Rt Hon Baroness Hale, Deputy President of the
Supreme Court.15 The parties to a judicial review may not have the
resources, perspective or expertise to provide all the information
relevant to determining the issues, especially where the impact of the
judgment could extend beyond the facts of the case.
The Commission has given assistance to the court through many of its
own interventions. In the first six years of operation (to November 2013),
we intervened in 27 cases in the High Court. While our interventions in
all the 22 concluded cases added some value, our analysis suggests
that in 14 of these cases our intervention had a particularly substantial
influence on the proceedings. This included cases where, in our
assessment, the judgment adopted or reflected our submissions or
where our intervention helped to encourage a settlement.
The following examples illustrate how the Commission’s interventions
have had an impact on the outcome of judicial reviews:
 In the case of Bracking,16 the Commission’s submissions drew
attention to Article 19 of the UN Convention on the Rights of Persons
with Disabilities (the requirement on a state to promote independent
living). The court held that the Secretary of State should have been
made aware of Article 19 in considering the scope of the PSED in
relation to disabled people. Our submissions on the ‘due regard’ duty
under the PSED were also accepted by the court.
 In Detention Action v Secretary of State for the Home Department 17 a
judicial review concerning the detained fast track for asylum seekers,
the NGO claimant accepted that it did not have ‘victim’ status under
the Human Rights Act 1998, and so could not rely on alleged
violations of the human rights of others. Through its intervention, the
Commission was able to advance arguments relating to potential
breaches of Article 5 ECHR (right to liberty) which had a
demonstrable impact on the outcome of proceedings.
15
Speech to conference: Judicial review trends and forecasts conference. London 14 October 2013.
Stuart Bracking and others v Secretary of State for Work and Pensions [2013] EWCA Civ 1345
17 Detention Action v Secretary of State for the Home Department [2014] EWHC 2245 (Admin)
16
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 In R (B) v Director of Public Prosecutions,18 the Commission made
submissions on the obligations on the Crown Prosecution Service
(CPS) under the former Disability Equality Duty. These submissions
were accepted by the Court and led to the CPS issuing new guidance
on dealing with vulnerable witnesses and defendants in the criminal
justice system.
The Commission shares the JCHR’s concern about the false distinction
made between interveners who apply for permission to intervene and
those who are invited to do so; the latter would not face the same
presumption on costs. The broad approach taken by Clause 67 would
appear to result in costs being awarded even against interveners whose
submissions make a significant contribution to the outcome of the case.
Amendment 74 in the Marshalled List of Amendments
Page 67, line 25, leave out subsections (2) to (6) and insert—
“(2) The High Court and the Court of Appeal may not order costs to be
paid as
between an intervener and a relevant party to the proceedings unless it
considers that there are exceptional circumstances which make it
appropriate to do so.
(3) In determining whether there are exceptional circumstances for the
purposes of subsection (2), the court must have regard to criteria
specified
in rules of court.”
Clause 68 - Commission’s recommendation
Amendments 75, 76 and 77 put forward by Lord Pannick should be
supported.
Explanation
Clause 68 of the Bill imposes restrictions on the ability of the High Court
and the Court of Appeal to award costs capping orders (otherwise
known as protective costs orders) in judicial review cases. In particular,
subsection (3) provides that a costs capping order can only be made
once the court has granted permission to apply for judicial review.
18
R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin)
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The purpose of the amendment is to remove the restriction only allowing
the court to grant costs capping orders in cases where leave has already
been given. The amendment would also remove the proposed statutory
criteria for granting such orders, leaving this to the discretion of the
court.
Our analysis
We consider that this proposed restriction on costs capping orders could
have a restrictive effect on access to the courts for judicial review
applications engaging human rights or the Equality Act 2010 – including
the PSED. In some cases this might amount to a breach of Article 6(1)
(the right to a fair trial) or Article 13 (the right to an effective remedy for a
breach of Convention rights. We note the submission made by the
Bingham Centre for the Rule of Law in its supplementary written
evidence to the JCHR:
‘Cases may have pre-permission costs that comfortably exceed
£30,000. The risk of unknown and potentially substantial prepermission costs is a risk that those who would otherwise qualify
for costs protection cannot possibly take. If a [protective costs
order] cannot be obtained to protect against such a costs risk, very
many claims with substantial wider public interest will not be
brought.’19
Amendments 75, 76 and 77 in the Marshalled List of Amendments
Page 68, line 16, leave out subsection (3)
Page 68, line 35, leave out paragraph (c)
Page 68, line 42, leave out subsections (8) to (11)
6. About the Equality and Human Rights Commission
The Equality and Human Rights Commission is a statutory body
established under the Equality Act 2006. It is an independent body
responsible for promoting and enforcing the laws that protect fairness,
dignity and respect. It contributes to making and keeping Britain a fair
society in which everyone, regardless of background, has an equal
19
Bingham Centre for the Rule of Law, supplementary written evidence (12 February 2014), para. 24.
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opportunity to fulfil their potential. The Commission enforces equality
legislation on age, disability, gender reassignment, marriage and civil
partnership, pregnancy and maternity, race, religion or belief, sex,
sexual orientation. It encourages compliance with the Human Rights Act
1998 and is accredited by the UN as an ‘A status’ National Human
Rights Institution.
Find out more about the Commission’s work at:
www.equalityhumanrights.com
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