Children's Commissioner takes Minister to court over Greenfields use

Sunday 20 February 2022

The Children’s Commissioner has taken the Home Affairs Minister to court, arguing that the way that Greenfields secure unit is being used for some young people charged with crimes is breaching human rights.

Deborah McMillan says that the way the law is set up means that some young people accused of less serious crimes are being sent to the ‘secure’ facility after being charged, with Centeniers effectively prevented from sending them to a 'non-secure' alternative, like a residential children's home.

But the Minister and Government strongly deny infringing the rights of children and young people, with the Attorney General arguing that very few children had been placed on remand at Greenfields in recent years and that the Children's Commissioner's suggestion that Centeniers are technically bound to breach human rights was "farcical and fanciful".

Advocate Darry Robinson appeared on behalf of Mrs McMillan to argue her case before Royal Court Commissioner Sir William Bailhache on Friday.

Advocate Robinson explained that the Children's Commissioner wanted a declaration from the Royal Court that Article 36 of the Police Procedures and Criminal Evidence Law 2003 - which relates to the duties of a Centenier after an individual is charged with an offence - was incompatible with Articles 8 and 5 of the European Convention on Human Rights, which deal with respect for private and family life, and the right to liberty and security respectively.

Pictured: Advocate Darry Robinson presented the Children's Commissioner's application.

Under the current law, Advocate Robinson said that the Centenier is compelled to transfer a child or young person who is charged with an offence but denied bail to 'secure accommodation' provided by the Government, save where is “impracticable” to do so or secure accommodation is not available, in which case the child must remain in police custody pending their appearance before the Youth/Magistrates Court.

Advocate Robinson said that the Attorney General's position that the 2003 law was compliant with human rights gave rise to the "suggestion... that the Centenier is getting it wrong."

He argued, however, that the guidance given to Centeniers in how to exercise their duties was the issue.

He said he didn’t intend to criticise Centeniers, whom he said were in an “untenable position” with their hands tied because of the wording of the guidance. 

Pictured: Advocate Robinson said there was “no middle ground”  for a centenier to place a child or young person in the care of the Children’s Minister in a non-secure accommodation.

Advocate Robinson explained that there was “no middle ground” or “alternative” for a Centenier to place a child or young person in the care of the Children’s Minister in a non-secure accommodation.

He said the incompatibility in the law arose from the fact the Centenier was forced, within the legislation, to consider bail first and then secure accommodation. 

“It doesn’t work, it’s unlawful,” he said. 

He said that if the purpose of the Attorney General’s guidance was to promote the non-secure accommodation, it would specifically say so.

He also added that the mandatory transfer to secure accommodation - or continued police detention where secure accommodation is not available - meant children and young people may be accommodated in 'secure conditions' when other accommodation provided by the Children’s Service would be "adequate and in the best interests of the child". This, he said, breached Article 8 right to private and family life in an "unnecessary and disproportionate" manner.

Advocate Robinson said Jersey's situation differed from Guernsey and the UK.

“Centeniers are fettered in their decision to place a child in the care of the Minister in non-secure accommodation because of legislation, they don’t have the power to do so because there’s a problem with the law.”

He concluded by explaining that there was no “obvious necessity” for children accused of crimes to be sent to Greenfields in every case - but that evidence showed this was what was happening.

The Attorney General Mark Temple appeared on both his own behalf and for the Home Affairs Minister to oppose the application.

Before setting out his arguments, he was clear that this opposition was not to be taken as “any indication we are opposed to children’s rights in a youth justice context - the absolute opposite is the case."

Pictured: The Attorney General, Mark Temple.

Maintaining that the law was compliant with human rights, he described the Children's Commissioner's arguments as flawed, and argued that some evidence she had provided to court was "deficient" and had led the wrong conclusions to be drawn.

He said a "positive duty" existed for laws to be applied in a way that were compliant with human rights - “not just a presumption, it is an obligation, it is a duty, it is not an option,” he said.

“We are not in the territory of the Court not being able to keep a convention compliant reading to article to the law,” he emphasised.

The Attorney General added that the Children’s Commissioner had only provided evidence of “less than a handful of cases”, with only four children over a two-period who had been detained in secure accommodation.

She had not provided the number of cases where children are released completely, on conditional bail, with requirements to abide by curfew, he added.

Pictured: The Attorney General said the Children's Commissioner had only provided evidence of "less than a handful" of cases where children had been detained at Greenfields.

He argued it was “totally inadequate” to come before the Royal Court and seek such a declaration.

He said that the idea that centeniers were compelled to remand children in secure accommodation because of a “technical engagement” in the law was “farcical and fanciful”, as there is power to remand children to non-secure accommodation.

The hearing has been adjourned and will resume at a later date.