Jason Beer QC successfully resists an attempt to impose a positive obligation to inform possible victims of unlawful restraint as to their legal status

Jason Beer QC represented the Interested Parties, the operators of Secure Training Centres (‘STCs’) in R (Children’s Rights Alliance for England) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd and Serco plc [2012] EWHC 8 (Admin).

Following previous decisions that STCs had used restraint unlawfully, the Children’s Rights Alliance for England (‘CRAE’) sought an order that the Secretary of State for Justice should "provide information, or facilitate CRAE providing information" to children who might have been victims of unlawful force whilst in the custody of STCs.

This was an entirely novel application which CRAE based on the common law and ECHR obligations to provide access to justice. CRAE also asserted that it was irrational of the SSJ not to have informed potential victims of their legal rights.

The SSJ and STCs Parties argued that there was no legal obligation to inform possible victims, that it was not irrational not to take the steps requested, and that CRAE did not have standing to bring a claim relying on ECHR rights in any event.

Dismissing the claim Foskett J noted that there was no precedent for the remedy sought. He held that "I would, for my part, take the view that a court should be very reluctant to fashion, by analogical or incremental development of the common law or indeed by way of novel creation, a remedy designed solely for the circumstances of the present case". In relation to ECHR rights Foskett J further noted that no Strasbourg jurisprudence imposed obligations such as those argued for by CRAE, and that it was not the job of domestic courts to enlarge ECHR rights but rather to allow them to be enforced domestically as they would be in Strasbourg.

On the question of rationality Foskett J held that it was rational not to inform potential victims in circumstances where they might not be easily or confidentially contactable, might not wish to be reminded of their time in custody, and against the background of there not being any legal obligation to inform potential victims.

Importantly, on the question of standing, Foskett J indicated that had he not found against CRAE on the merits, he would have held that it was not a ‘victim’ for the purpose of the Human Rights Act 1998, and accordingly would have only been able to consider its common law claim.

Jason Beer QC practises in the areas of public law, police law, inquests and public inquiries.