75. This Chapter looks at the use of restraint in STCs in practice; and the effectiveness of the current methods for implementing Government policy. We have particularly focused on areas where we consider that more can be done to ensure that the rights of children and young people in detention are protected.

Roles and responsibilities

76. The Ministry of Justice and the YJB, as public authorities under the HRA, are required to act compatibly with human rights. STCs are private companies with which the YJB contracts to perform the Secretary of State's and YJB's statutory duties. Notwithstanding these contractual relationships, the Secretary of State and the YJB retain overall responsibility for ensuring that the rights of children and young people in detention (including STCs) are protected.

77. Concerns have been expressed over the precise responsibilities of the Ministry of Justice and the YJB for PCC. The coroner at Gareth Myatt's inquest recommended that the two bodies should "publicly clarify where responsibility for the system of PCC and its permitted use lies."[85]

78. Since June 2007, the Ministry of Justice has had a "shared understanding of policy details with the Department for Children, Schools and Families".[86] In November 2007, a new joint Youth Justice Unit was launched between the Ministry of Justice and the Department for Children, Schools and Families, which has the aims of:

i)  contributing to the protection of the public by developing policy and law in relation to children and young people who offend and are at risk of offending; and

ii)  ensuring that children and young people in contact with the criminal justice system achieve all five outcomes of Every Child Matters, i.e. to be healthy, stay safe, enjoy and achieve, make a positive contribution and achieve economic well-being.[87]

79. The Unit also sponsors the work of the YJB. Although we requested a copy of the Memorandum of Understanding between the Ministry of Justice and the Department for Children, Schools and Families, this was not provided.

80. We are pleased to note the establishment of a joint unit, which we hope will go some way to dealing with the coroner's concerns. We urge the unit to ensure that there is greater focus on child protection and the needs and rights of vulnerable children within the criminal justice system. The proposed Memorandum of Understanding should clarify the mutual roles and responsibilities of each of the bodies, to ensure that vulnerable children do not fall between them. We also hope that the new Unit will lead to better monitoring of the YJB and its performance, particularly during this period of transition as a new Chair comes into post.

THE REVIEWS

81. In 2003, the National Children's Bureau was commissioned by the YJB to undertake a review of physical intervention within secure settings for under 18 year olds. In its evidence to us, the NCB states:

The final report revealed a fragmented approach, with different criteria for both the use of restraint and the methods that could be used.[88]

82. It identified an urgent need for an evaluation of the safety and effectiveness of restraint techniques. [89] On 26 July 2007, the Government announced a review into the use of restraint. The broad terms of reference of the review are:

… to encompass policy and practice on the use of restraint across a range of juvenile secure settings including Secure Training Centres (STC), Secure Children's Homes (SCH) and Young Offender Institutions (YOIs).

83. We are pleased to note that the review will encompass, amongst other things, the "operational efficacy, safety (including medical safety) and ethical validity of restraint methods", staff training and monitoring, and the respective responsibilities of the Ministry of Justice, Department for Children, Schools and Families, the YJB and institutional providers. We would encourage the widest possible review of the use of restraint against children and young people in a variety of settings and urge the Government and the YJB to consider the results of the review carefully and promptly and to publish the review's findings and the Government's response in a timely manner.

84. The Ministry of Justice told us that in addition to the broader review which it announced in July, a Medical Review Panel met on 2 November 2007 and plans to meet early in 2008, "before finalising its recommendations to the two Departments".[90] The Minister assured us that he would reflect on the Panel's findings and would publish its recommendations and the Government's response.[91] We welcome the re-establishment of the Medical Review Panel and seek the Government's assurance that it will now meet regularly and frequently, in order to keep the full range of PCC techniques under careful scrutiny. Following its current deliberations, we recommend that the Review Panel reports annually, at a minimum, on the medical safety of current PCC techniques.

85. We note the evidence of Rebound, who told us of their "significant concerns about the safety of the PCC both for young people and the staff …it is sometimes not possible to put on PCC holds. It is also difficult to safely apply the head support."[92] We urge the Government to ensure that, as part of the medical review, the views of STCs and specialist organisations are considered, in particular to address any concerns from those being subjected to the use of force or implementing restraint techniques.

86. We are pleased to note that two techniques were suspended in December 2007, on the basis of medical advice. We recommend that the Government seriously consider the necessity and proportionality of restraint holds or techniques carrying a risk of death or serious injury. There can be no justification for practices which involve the deliberate infliction of pain,[93] such as the so-called "distraction techniques", and we therefore recommend their abolition without delay.

MONITORING AND REPORTING

87. The YJB and Ministry of Justice point to YJB Monitors[94] as an integral safeguard for PCC. The Monitors check the adherence of STCs to their contracts, including their use of restraint. When restraint is used, an incident form must be completed by those involved. These reports may be reviewed by the YJB Monitors.[95] The Minister told us that if the YJB has concerns about the level of restraint in a STC, they will investigate. He also said that the YJB Monitor is able to refer concerns to the local child protection agencies or raise them with the STC itself.[96] He assured us that YJB Monitors are not simply a "rubber stamp".[97]

88. The Coroner in the inquest into the death of Gareth Myatt made a recommendation about these incident reports. He suggested that:

… every statutory Incident Report involving the use of PCC should contain full details of what happened, statements by those involved, any injury to a trainee or to staff, reasons for the use of PCC and reasons why other means of dealing with the situation were not used or had proved unsuccessful. Such Reports must also include a statement by the trainee, in their own hand where possible, and the form should provide the opportunity for a trainee to report any injury. Up to the time of Gareth's death there was no input from the child into this Reporting system. The new Reports should include a facility for both staff and trainees to conclude what lessons they had learned from the incident and how PCC might be avoided on a future occasion.

This need for the trainee's account… came to be referred to during the Inquest as "listening to the voice of the child". That phrase is a telling one, and is one that ought to be borne in mind by everyone at all times.[98]

We agree with this recommendation.

89. According to the Minister, "specific training in PCC … is being arranged for Monitors of STCs"[99] and that "some Monitors already have this [training] but require refresher training".[100] We find it astonishing that YJB Monitors, one of the safeguards relied on by the Government and the YJB for the safe use of restraint, have not until now routinely been trained on restraint procedures themselves. We recommend that this omission be urgently rectified. All YJB Monitors should receive initial training in restraint techniques and any YJB Monitors who have been trained previously should receive regular refresher training. There should be specific monitoring of the effect of the Amendment Rules both in quantitative (i.e. the number of restraints) and qualitative terms, with the reporting of results to this Committee and Parliament.

Duties of Secure Training Centres

90. The Secretary of State for Justice has recently confirmed to us that, in his view, non-governmental bodies providing contracted-out services in the criminal justice system, such as STCs, are functional public authorities for the purposes of the Human Rights Act 1998 and are therefore subject to the Act in respect of those contracted-out functions.[101] We have reviewed two contracts with STCs. The contracts set out the duty of the STC contractor as follows:

The Contractor shall at all times operate the STCs in accordance with all relevant statutory provisions including but not limited to the 1994 Act, the Prison Act 1952 and the STC Rules.[102]

91. Although the contracts are over 130 pages long, plus Schedules, they make only two references to human rights (namely, including the Human Rights Act in legislation listed in the "interpretation" section; and referring to the possibility of trainees complaining to the European Commission on Human Rights (abolished in 1998)), despite containing discrete sections on sex and race discrimination and data protection.[103] The requirement to act compatibly with human rights is not an express contractual requirement which is subject to audit. We see this as further evidence of the failure to put the rights and needs of children and young people at the heart of the STC regime. We recommend that human rights obligations be included in the body of any future contracts with STC providers and that Schedule H include compliance with human rights obligations within the performance measures under the contract. In addition, the YJB should write to existing STC providers to explain their human rights obligations and reiterate the expectations of the Secretary of State.

92. Following the introduction of the STC (Amendment) Rules, the Chief Executive of the YJB wrote to all STCs to inform them of the effect of the Amendment Rules. The YJB told us that they made explicit "its view that the change to the rules governing restraint in STC should not lead to an increase in the use of restraint."[104] In her letter, the Chief Executive stated that restraint should not be used for compliance and should only be used as a last resort where no alternative method is available. The Minister told us that since the Chief Executive of the YJB had written to STCs about the Amendment Rules, "the onus is now on operators to ensure that their staff understand and follow the Rules."[105] The YJB told us that it is a matter of the STCs' "operational judgement" as to whether or not restraint is necessary, and they can be held to account for the judgment that they make.[106]

93. When we asked what guidance is provided to staff themselves to enable them to assess, in advance, whether or not the force they intend to use is proportionate, the Minister noted that STCs issue "local operating instructions to staff" to assist them in making judgements.[107] We have not been provided with examples of such local operating instructions. It is vitally important that operating instructions are clear, accessible, and provide worked examples of different situations, to demonstrate to staff how to determine if the force is or is not an action of last resort, and how to decide whether an action is necessary and proportionate. We recommend that the YJB actively monitor the local operating instructions, to ensure that they meet STCs' human rights obligations and accurately reflect the legal position.

94. In their joint evidence to the Committee, the NSPCC and the Children's Rights Alliance for England comment that:

Concerns have been raised about potential conflicts of interest, given that the private firms managing STCs must meet targets for children's participation in education in order to secure financial rewards. It became apparent from interviews with children during the Carlile inquiry that restraint was being used to ensure children attended education sessions.[108]

95. The Minister told us that:

It would not be my policy nor indeed that of the chief executive to have restraint techniques used to encourage individuals to participate in educational opportunities. The STC rules themselves are in the contract for the STCs and it is understood that they have to adhere to that contract as well as the Code of Practice.[109]

96. We were pleased to hear the Minister's assurance that restraint is not permitted to enable STCs to meet educational or other targets. We urge the YJB to continue to pay close attention to any correlation between targets and restraint.

97. The NSPCC and the Children's Rights Alliance for England advocate that:

There should be a legal duty on all providers of education, health and custodial settings that use physical restraint to inform children and their parents or carers of their restraint policy, the methods used and the safeguards in place.[110]

98. Section 7 of the Secure Training Centre Rules 1998 requires STCs to provide a detained young person:

… with information in writing about those provisions of these Rules and other matters which it is necessary that he should know, including privileges, incentives and sanctions, contact with members of his family or independent persons and the proper method of using the grievance procedure.

99. When we asked the Minister for his views on the suggestion of a duty to provide information on physical restraint, the Minister told us that he would reflect on it, but did not want to pre-empt the review.[111] Requiring STCs to provide affected individuals with their restraint policies may assist staff and detained young people and their families and carers to understand when restraint may be used. In the absence of any countervailing argument (which we cannot discern), we see no good reason for keeping such policies secret. Indeed, it seems to us that Section 7 of the Rules already requires information on restraint to be provided to detainees and their families and carers. We recommend that this provision should be immediately implemented by STC operators.

100. According to the YJB, under its contract with STC providers, all custody staff must undertake a training course which must include training on physical restraint by accredited Home Office instructors. Refresher physical restraint training must be given at regular intervals (at least once a year) by accredited instructors.[112] Rebound described to us the way it trains its STC staff in the use of restraint:

23. All staff employed by Rebound are fully trained in PCC techniques. During the ITC staff must successfully complete and pass an initial five-day intensive PCC course. In order to maintain the Home Office certification as a Custody Officer staff are required to have annual refresher training which is a one-day course delivered by a PCC instructor. Rebound staff undertake PCC refresher every 6 months which is above contractual requirements.

24. Initially the HM Prison Service trained all staff employed by Rebound in PCC. The Prison Service then devised a PCC Instructor's course which was approved by the Home Office. Selected candidates from Rebound undertake a two-week training course which is delivered by the Prison Service. Once the candidates have completed and successfully passed the course they are accredited by the Prison Service to train others in PCC. The instructors have an annual week's refresher training by the Prison Service to maintain their accreditation. They follow the PCC manual which is written by the Prison Service and approved by the YJB.[113]

101. Staff are not provided with a copy of the PCC manual, although the Ministry of Justice states that it is reviewing what written guidance custody officers need.[114]

102. Both the coroners who conducted the recent inquests into the deaths of Gareth Myatt and Adam Rickwood identified problems with existing staff training. The coroner at Gareth Myatt's inquest recommended that the Ministry of Justice and the YJB consider teaching PCC at national level by national instructors or, as a bare minimum, that the Ministry of Justice institute nationally based supervision and inspection of local teaching.[115] The Minister told us that this recommendation was being considered by the PCC Management Board.[116] The coroner at Adam Rickwood's inquest suggested that there was confusion amongst trainers "with regard to PCC its application and the reasons therefore and when if ever guidance in the appropriate manuals could be disregarded".[117]

103. Ensuring that staff are appropriately trained is vital in the protection of the rights of detained young people and children, particularly where restraint is permitted. This requires both frontline staff and their instructors to be absolutely clear on the circumstances in which restraint is permitted. We are concerned to hear that staff considered that there might be circumstances in which guidance need not be followed. We recommend that all staff working in STCs receive targeted and regular training in human rights principles and how they apply to their work, including the use of restraint. This should be included as a core training requirement in Appendix 7 of Schedule D to the standard contract with STCs. Further, all staff, whether or not they are already trained, should receive training, as a matter of urgency, on the effect of the Amendment Rules. Standard training should be regularly reviewed, to ensure that it remains accurate and up to date. Training of STC staff should be subject to supervision and monitoring by the Ministry of Justice.

Code of Practice

104. In 1998, the YJB published a 12 page Code of Practice entitled Managing the Behaviour of Children and Young People in the Secure Estate, which has no statutory force, but is issued as guidance. In its evidence, the YJB states:

We believe that the standards set out in our Code of Practice reflect, and are compliant with, international conventions and treaties, including the United Nations Convention on the Rights of the Child.[118]

105. The Code is written in very general terms. Relevant parts of the Code of Practice include:

• restrictive physical interventions must only be used as the result of a risk assessment;
• restrictive physical interventions must not be used as a punishment, or merely to secure compliance with staff instructions; and
• the degree of physical intervention must be proportionate to the assessed risk.[119]

106. The Minister and the YJB deny that the Code of Practice needs to be amended in the light of the Amendment Rules.[120] However, in answer to our questions in oral evidence, the Minister agreed that the Code could be revised in the light of the review's recommendations.[121]

107. Whilst we welcome the Government's commitment to amending the Code in the light of the review, we consider that it should have amended the Code when the Amendment Rules came into force, given the different ways in which the Rules can be interpreted and, therefore, the potential for ambiguity they create. We recommend that there be a presumption that the Code be amended whenever the Rules are amended, in order to ensure that there is no confusion in the minds of staff about the effect of any Amendments on what they are and are not permitted to do. As part of, or in addition to the Code, very detailed guidance needs to be provided to staff on the precise circumstances in which restraint may lawfully be used. We consider this further in the paragraphs which follow.

Physical Control in Care Training Manual

108. The part of the PCC Manual produced by the Prison Service for training instructors in PCC, which details the restraint holds and techniques, is not publicly available. According to the Minister, "dissemination of it could affect security at secure training centres".[122] In oral evidence, we pursued the Government's reasons for restricting access to the whole of this document, noting that we would be better able effectively to scrutinise its compatibility with human rights standards if we could read it. The Minister resisted the suggestion that the manual should be made public, stating:

The public scrutiny of those techniques is not something I would wish to see, not for the reason of lack of public scrutiny but because, ultimately, they are techniques which are used for control.[123]

109. The Minister has subsequently amplified his response stating:

The Prison Service considers that placing descriptions of the individual techniques in the public domain might lead to their being attempted by people who had not received the necessary training. That could place people at risk.

During the hearing of oral evidence, Dr Harris made the point that other potentially dangerous information, for example about surgical techniques, was in the public domain. However, that may be because of the practical difficulty or impossibility of limiting its availability, rather than the desirability of its being widely available.[124]

110. The YJB concurred with the Minister's view, which was based on the Prison Service's advice stating:

If how the techniques are used is understood then it is possible for young people to develop counter-techniques, and so it affects the overall efficacy of the system.[125]

111. We were alarmed by the headings of some of the redacted sections, namely 'hair grab', 'strangle against the wall', 'strangle on the ground', 'kicks standing' and 'kicks on the floor'. It was not possible to ascertain the content of these sections. We have seen the remaining publicly available parts of the manual which set out, in summary form, some of the human rights principles which apply. We were alarmed to see that there is little guidance about the core material that should be covered by instructors during the training, in order to ensure consistent standards across STCs. Indeed the Manual notes that "it is not possible to reproduce within this manual all the teaching points that instructors must necessarily relate to trainees as only a brief description of the techniques and systems of PCC training is given", and advises instructors to produce their own comprehensive lesson plans.[126] We also note that the manual is intended for instructors of PCC, but is not aimed at or provided to staff who are trained to use restraint.

112. We recommend that the training manual (which should be disseminated to all STC staff who are authorised to use PCC, and all instructors and monitors) be regularly reviewed and, if necessary, updated to ensure that it remains current and accurate. Staff need to be absolutely clear about the circumstances in which restraint is lawfully permitted. The manual should make clear that violence is allowed only in narrowly construed circumstances. Furthermore, the manual needs to provide greater guidance to instructors about the core elements of which staff using restraint need to be aware and to follow, in order to ensure consistency and clarity across the STC estate. Finally, the manual should be updated as a matter of urgency to remove reference to the two suspended techniques.

113. We have examined the rationale for not publishing the manual in its entirety. We do not consider that the Minister or the YJB have made a convincing case for continuing confidentiality. We are also very concerned by the impossibility of scrutinising for human rights compatibility techniques of physical restraint which remain secret. We therefore recommend that the entire manual be made publicly available, including on the websites of the Ministry of Justice, the Department for Children, Schools and Families, the Youth Justice Board and the Prison Service. A full copy should also be placed in the libraries of both Houses.

LAST RESORT

114. Rule 38 provides that physical restraint may only be used where "no alternative method" is available. The YJB's Code of Practice states that "restrictive physical intervention must only be used as a last resort, when there is no alternative available or other options have been exhausted."[127] An example of the deficiencies in the Manual is demonstrated in its consideration of staff reporting of restraint incidents.

115. We pressed the Minister and the Youth Justice Board on the evidence that they would expect to see, to demonstrate that restraint had been used as a last resort and after all other options had been exhausted. In particular, we questioned whether it was possible to prove, with any degree of certainty, that all options had been exhausted. Such a position is beneficial to neither detained young people nor to staff. The Minister stated:

The [YJB] Monitor and the STC Director will consider what other options (if any) were attempted, and whether options that were not attempted might have been attempted with any realistic prospect of success. If the matter is referred to the Youth Justice Board, it will also consider those questions.[128]

116. Staff involved with a restraint incident are required to produce reports after the event. This appears to be one method of determining whether or not the force used was lawful. The PCC Manual explains the rationale for staff reports as follows:

The purpose of the member of staff writing the report is to justify their actions and to demonstrate that the use of force was:

• reasonable in the circumstances
• necessity [sic]
• no more force than was necessary
• proportionate to the seriousness of the situation.

…

Copies of the Use of Force Report Form may be produced for internal or external investigations. It is important that when a written statement is given it creates as full a picture as possible in order to justify the actions that have been taken.[129]

117. Difficulties inevitably arise when attempting to prove that no alternatives to a particular course of action were available and, that force was used as a last resort. Accessible guidance is needed for staff, so that they understand clearly the actions that they need to consider before they use force. This should not be a "tick box" exercise, but should enable staff to be confident that they are carrying out their work lawfully and with full respect for the rights of all those in their care.

118. We are concerned that the focus of the manual is on justifying staff action, rather than on explaining what happened, justifying the use of force as lawful and that, where it was not, ensuring appropriate action is taken and lessons learnt for the future. The manual appears to prioritise the needs of staff over the needs of detainees. We recommend that the YJB review the PCC manual to address these concerns.

86   Q 37. Back

87   Ev 24. Back

88   Ev 43, para. 1.2. Back

89   Ev 43, para. 1.2. Back

90   Ev 24. See also Ev 38, para. 1.43. Back

91   Q34 and Ev 24. Back

92   Ev 52, para. 55. Back

93   See UN Committee on the Rights of the Child, General Comment 8 (2006), para. 15. Back

94   Established under section 9 Criminal Justice and Public Order Act 1994. Back

95   Ev 50, para. 29 and Ev 25. Back

96   Ev 25. Back

97   Q 27. Back

98   Letter from His Honour Judge Pollard to the Secretary of State for Justice, 18 July 2007, Action 2.  Back

99   Ev 26. Back

100   Ev 26. Back

101   Letter from the Rt Hon Jack Straw MP, 21 January 2008, in Eighth Report of Session 2007-08, Legislative Scrutiny: Health and Social Care Bill, HL Paper 46, HC 303, p. 66. Back

102   Contract between the Secretary of State for the Home Department and Medomsley Training Services Ltd (HINF99/855); Contract between the Secretary of State for the Home Department and ECD Olnley (Dep 2008-0401), para. 33.2. Back

103   For our broader views on the effectiveness of contractual provisions on ensuring human rights compliance, see Ninth Report of Session 2006-07, The Meaning of Public Authority under the Human Rights Act, HL paper 77, HC 410, Chapters 2 and 4. Back

104   Ev 38, para. 1.46. Back

105   Ev 25. Back

106   Q 27. Back

107   Ev 25. Back

108   Ev 67, para. 58. See also Howard League for Penal Reform, An independent inquiry into the use of physical restraint, solitary confinement and forcible strip searching of children in prisons, secure training centres and local authority secure children's homes, January 2006, p. 43. Back

109   Q 38. Back

110   Ev 62, para. 15. Back

111   Q 36. Back

112   Ev 37, para. 1.36. Back

113   Ev 49. Back

114   Ev 23. Back

115   Coroner's letter to the Secretary of State for Justice, 18 July 2007, p. 11. Back

116   Ev 25. Back

117   Ev 28, para. 5. Back

118   Ev 36, para. 1.24. Back

119   Code of Practice, paras. 10.2, 10.4 and 10.9. Back

120   Ev 15. Back

121   Q 35. Back

122   Ev 15. Back

123   Q 4. Back

124   Ev 23. Back

125   Q 7. Back

126   p. 44. Back

127   Para. 10.6. Back

128   Ev 24. Back

129   pp. 29-30. Back