Upper Tribunal Upholds Refusal to Disclose Training Manual Under FOIA

OUTCOME: Dismissed

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 1

[2018] AACR 7 ([NAME_1] v (1) [NAME_4] (2) Ministry of Justice [2017] EWCA Civ 1876)

CA (Leveson, McCombe and Newey LJJ) GIA/428/2015 22 November 2017

Freedom of Information – exempt information – public interest – application of Article 3 of United Nation Convention on the Rights of the Child The appellant applied [NAME_5] the Freedom of Information Act 2000 (FOIA) for an unredacted version of a new manual issued for use in Secure Training Centres ([NAME_6]) for children and in Young Offender Institutions ([NAME_7]). The Ministry of Justice refused the request on the basis that the unredacted manual was a restricted document [NAME_5] sections 31(1)(f) (good order) and 38(1)(a) and (b) (health and safety) of FOIA. The appellant complained to the [NAME_4] who concluded that the requested information was likely to prejudice the maintenance of security and good order in [NAME_7] and therefore section 31(1)(f) FOIA was engaged. The appellant appealed to the First-tier Tribunal ([NAME_8]) which decided that the threat to the good order and security of [NAME_7] and prisons and the safety implications for the inmates and staff favoured non-disclosure. The appellant appealed to the Upper Tribunal ([NAME_9]) arguing that the [NAME_8]’s reasons were inadequate and irrational and it had failed properly to consider the best interests of the child as required [NAME_5] 3 of United Nation Convention on the Rights of the Child (UNCRC). The [NAME_9] dismissed the appeal, holding amongst other things that the [NAME_8]’s decision was not irrational, that its reasons were adequate and that the provisions of Article 3.1 had no application in the case. The appellant appealed against that decision to the Court of Appeal.

Held, dismissing the appeal, that: 1. the judgment of the [NAME_8] was an assessment that was well within the bounds of the legitimate exercise of its responsibilities [NAME_5] the FOIA and cannot possibly be said to be irrational, perverse or inadequately reasoned (paragraph 37); 2. the relevance of the authorities relating to unincorporated treaty provisions in English law may arise where the meaning of a statute was ambiguous, however, in the context of this case the meaning of the words "public interest" was not in doubt and could not be clearer. It was a well-known and well understood concept both in law and in general use. Which factors are relevant to determining what was in the public interest in any given case are usually wide and various but that did not mean that it was necessary, at the outset, to resort to the UNCRC to determine the meaning of this perfectly common phrase (paragraph 48); 3. whether or not the [NAME_9] was right to say that Article 3 of the UNCRC had no application in this case, the public interests surrounding children was clearly at the heart of the decision-making process (paragraph 52).

DECISION OF THE COURT OF APPEAL [NAME_11] and [NAME_13] appeared for the appellant Gerry Facenna QC & [NAME_17] (instructed by [NAME_21], [NAME_22]) appeared for the First Respondent [NAME_24] QC (instructed by The Treasury Solicitor) appeared for the Second Respondent

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 2

Judgment

SIR BRIAN LEVESON:

1. This is an appeal from a decision of the Upper Tribunal, Administrative Appeals Chamber (Upper Tribunal Judge Kate Markus QC) (“[NAME_9]”), dated 24 March 2016, dismissing the appeal of [NAME_26] against the decision of the First-tier Tribunal (“[NAME_8]”) dated 30 November 2014 which itself rejected an appeal from the [NAME_4]. UTJ Markus concluded that the [NAME_8] had neither erred in their application of the law, nor acted irrationally and that the decision was adequately reasoned. She refused permission to appeal which was subsequently granted by Arden LJ on the basis that the case raised an important point of principle or practice or that there was some other compelling ground for what is, in fact, a third (or, counting the [NAME_4], a fourth) tier appeal to be heard.

2. The appeal concerns the disclosure by the Ministry of Justice (“[NAME_3]”), pursuant to the provisions of the Freedom of Information Act 2000 (“FOIA”), of a full, un-redacted, copy of the Minimising and Managing Physical Restraint training manual (“MMPR”) which, as its name makes clear, is directed to training relevant staff in the mechanisms whereby children and young persons in custody may be restrained if circumstances require it. Background 3. [NAME_28] is a qualified social worker with considerable experience in advancing and protecting children’s rights. Much of her work has focused on her concern regarding the use of restraint techniques on children in custody. From 2000 to 2012, she was the National Co- ordinator of the [NAME_29] and as such she served on the expert advisory panel to the independent inquiry into the use of physical restraint, solitary confinement and forcible strip searching of children in custody conducted in 2006 by [NAME_81]. During this period, [NAME_28] made a FOI request for full disclosure of the Physical Control in Care restraint manual (“PCC”), which was then used in Secure Training Centres (“[NAME_6]”) for children [NAME_5]

18. The Youth Justice Board refused disclosure relying on section 31(1)(f) FOIA. This decision was overridden by the [NAME_4], who ordered that the PCC be disclosed on the grounds that there was significant public interest in its disclosure, taking into account the level of debate and controversy surrounding the use of physical restraint and the evidence that the techniques could result in physical harm. The PCC was published without, so it is argued, any adverse effect. It is of note, however, that in other proceedings, the Use of Force Manual (for Young Offender Institutions above the age of 17 and adult prisons) was considered to have been properly withheld from disclosure.

5. Thereafter, in July 2012, a further training manual was produced (the MMPR). It followed an independent review of restraint procedures in secure settings for juveniles, which was conducted following the deaths of two children in [NAME_6] during or following physical restraint. It is used in [NAME_6] (which accommodate children and young persons aged between 12 and 17 years of age) and juvenile Young Offender Institutions (“[NAME_7]”) (accommodating those between 15 and 17 years). No doubt encouraged by the decision in relation to the PCC, on 12 July 2012, a further FOI request was made [NAME_5] the same legislation requesting a “a full copy – without any redactions” of the MMPR.

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 3

6. This was because the publicly available copy of the MMPR contained extensive redactions; to provide context, it must be made clear (as the [NAME_8] explain) that the online (redacted) version is 154 pages in length with redactions occurring on approximately 65 pages. The critical redactions essentially relate to aspects of the 12 core techniques for restraining, searching and disarming children and young persons with instructions on their application in different situations both with and without the use of ratchet handcuffs: each is to be used only as a last resort where it represents a necessary, proportionate, appropriate and ethical means of preventing injury to individuals or serious damage to property. Three involve potential pain compliance.

7. The redactions of which complaint is made do not prevent the techniques being identified but withhold precise details of the training instructions governing the way that ten are applied in practice; each of these ten is overtly marked and annotated with a gist of the redacted information, indicating the nature of the information which has been removed. By way of example, in the redacted version of the MMPR, the explanation of the technique involved in what is described as “inverted wrist hold – thumb only” has been removed and replaced with the following: “This sentence has been redacted. It describes how members of staff will take hold and control the young person’s arm, hand and thumb without applying undue pressure or pain when employing the inverted wrist hold.” 8. On 6 August 2012, [NAME_32] responded to the request by identifying the means of accessing the redacted copy of the MMPR. It was explained that the un-redacted version was a “restricted document” engaging the exceptions [NAME_5] section 31(1)(f) (good order) and section 38(1)(a) (b) (health and safety) of FOIA. In its letter, [NAME_32] provided a full explanation of the arguments for and against disclosure, but: “… considered on balance, the likely threat to the good order and security of [NAME_7] and prisons and the safety implications of this for young people and staff in both [NAME_7] and prisons favours non-disclosure of the un-redacted version of the MMPR training manual.” 9. A review of the decision was requested but, on 1 March 2013, [NAME_32] again rejected the application. While acknowledging the arguments advanced, specifically to the effect that there was no evidence that the disclosure of the PCC had led to children in [NAME_6] developing countermeasures, it distinguished between the contents and application of the MMPR and the PCC and underlined that the [NAME_4] had supported the non-disclosure of the Use of Force Manual which operated in [NAME_7] for those over 17 and in adult prisons. Thus, by way of example, the writer of the response made it clear that: “the MMPR… will also be used in Young Offender Institutions ([NAME_7]), and there are significant differences between [NAME_7] and [NAME_6] and the young people detained within them. [NAME_7] accommodate an older group of young people, many of whom demonstrate a much higher level of dangerous and violent behaviour towards both other young people and staff alike. Staff must be able to respond to these situations in a way that supports the maintenance of health and safety of both the young person and others. Furthermore there are similarities between the application of some of the techniques included in MMPR and those included in Control and Restraint (C&R), the restraint system used in adult prisons…

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 4

Finally I wanted to address the concerns you raise that the arguments in favour of disclosure made in the response of 6 August do not make specific reference to child protection or children’s rights obligations. Those arguments clearly refer to a public interest in ensuring that young people are treated humanely and decently, and that the health and safety of young people is considered in the development and deployment of MMPR… There are also many arguments in favour of non-disclosure that relate to child protection or children’s rights obligations. For instance, restraint techniques are often used in order to end a violent assault by one or more young people on another young person. It is therefore essential that staff can be confident in using restraint techniques, and not concerned that in doing so both their health and safety and that of young people may be open to compromise”.

10. Following this refusal, [NAME_28] mounted an appeal by way of complaint to the [NAME_4]. Again, [NAME_32] argued that the disclosure of the techniques in the MMPR could lead to some young people or adults developing countermeasures to their application. These assertions were challenged in the complaint which submitted that the background and educational status of children in [NAME_7] made it unlikely that they would develop countermeasures and emphasised the vulnerability of the young people. Attention was also drawn to the United Nations Convention on the Rights of the Child (“UNCRC”) with respect to children in custody and the specific duties of those having custody of them.

11. Following an inquisitorial investigation (which involved sight of the unredacted MMPR and the provision by [NAME_32] of other details), the [NAME_4] rejected the complaint and concluded that the information was likely to prejudice the maintenance of security and good order in [NAME_7], and therefore that section 31(1)(f) FOIA was engaged. He considered the public interest arguments for and against disclosure and decided that, on balance, the public interest favoured withholding the information. As a result of this conclusion, he did not need to consider section 38: this latter provision has not subsequently been an issue in proceedings before any of the three subsequent tiers of appeal.

12. Following rejection of the application by the [NAME_4], on 29 September 2014, an appeal was mounted to the [NAME_8]. The grounds of appeal is a lengthy document referring (among other things) to the vulnerability of children in [NAME_6] and [NAME_7], the history of child deaths, near fatal incidents and unlawful restraint in [NAME_6], restraint concerns in [NAME_7], child protection laws and safeguarding requirements and concerns over the extent to which children might learn about or misuse information from the manual. There is a reference to Article 3 of the UNCRC as “an important part of the legal context”.

13. The appeal challenged the conclusion that the public interest favoured non-disclosure of the MMPR and was supported by a detailed witness statement in which [NAME_28] identified and explained her experience and expertise, expressed her concerns about the risks of restraint and the deliberate infliction of pain on children; she also emphasised the importance of openness and transparency. Statements were also provided by [NAME_33] (former Social Worker and Independent Reviewing Officer for children who are “looked after” within the meaning of the Children Act 1989), [NAME_36] (NSPCC Chief Advisor on Child Protection), and [NAME_39] (Manager of [NAME_43] of the Secure Accommodation Network). These all supported the application and raised issues including the risks to children arising from secrecy and associated abuse of power, the vulnerability of detained children and the need for openness to enable effective monitoring and review of incidents. It was asserted that it was highly unlikely that detained children would use the manual to subvert discipline.

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 5

14. In addition to this material, the [NAME_8] had the evidence that had been gathered by the [NAME_4] (including the unredacted version of the MMPR); it proceeded on the concession, made by [NAME_28] in her grounds of appeal in respect of the [NAME_4]’s decision that the exemption in section 31(1)(f) FOIA was, in fact, engaged, and that it was therefore likely that disclosure of the MMPR would prejudice the maintenance of security and good order in prisons and institutions where persons are lawfully detained. For whatever reason, [NAME_32] was not a party to the proceedings before the [NAME_8] (although it was open to either [NAME_28], the [NAME_4], the [NAME_8] of its own motion or [NAME_32] to apply for it to become a party: see rule 9 of the Tribunal Procedure (First-Tier Tribunal) (General Regulatory Chamber) Rules 2009). Neither did [NAME_32] file any further evidence and although the [NAME_4] provided written submissions in response to the appeal, he was not represented at the oral hearing.

15. It was common ground that the PCC had been disclosed but the Use of Force Manual had been withheld. The conclusions of the [NAME_8] were expressed as follows: “20. The Tribunal considered that given the extent and detail of what is already in the public domain the benefit in terms of transparency and of public confidence in the lawfulness and humanity of the system was limited. It noted the extent of supervision of the detention of young people and the need for recording of incidents. The Tribunal did not consider that the investigation of incidents would be obstructed by the protection of the contents of the MMPR and its non-disclosure to the world at large.

21. It acknowledged that there was some force in the argument that few young people were likely to consult the manual and seek to learn from it how to resist restraint. The Tribunal noted that MMPR had been developed for an older age group than those detained in [NAME_6]. The client group within [NAME_7] was older and could demonstrate the capacity for a higher level of dangerous and violent conduct to staff and other clients than those within [NAME_6]. In developing the techniques to safely and humanely control such clients, techniques used for adult prisoners and set out in the “Use of Force” manual used in adult prisons had been considered and where appropriate adopted or adapted. The Tribunal considered that the relevance of the manual to the far larger numbers of potentially violent adults within the prison sector, some of whom would clearly be capable of learning from and applying the manual, was decisive (it may be noted that [NAME_28] was of the view that there were considerable similarities between MMPR and “Use of Force”; paragraph 7 above). The Tribunal endorsed the conclusion of the [NAME_4] in his letter to [NAME_28] of 11 July 2013:- ‘On balance, by quite a margin, the likely threat to the good order and security of [NAME_7] and prisons and the safety implications of this for young people and staff in both [NAME_7] and prisons favours non-disclosure of the withheld information’.”

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 6

16. On 11 February 2016, with leave, [NAME_28] pursued the application by way of further appeal to the Upper Tribunal. First, it was contended that the [NAME_8] had failed to provide adequate reasons for its decision and/or that the decision was irrational; and, secondly, that it failed to properly apprehend and discharge its obligation to treat the best interests of the child as a primary consideration pursuant to Article 3 of UNCRC. On this occasion, both the [NAME_4] and [NAME_32] were represented.

17. On 24 March 2016, UTJ Markus QC rejected the appeal on both grounds. By way of introduction, she dealt with the concession that section 31(1)(f) of FOIA was engaged in these terms (at [18]): “In the present case, the Appellant had accepted the Commissioner’s decision that prejudice was likely. … It is not now open to her to contend that there was not likely to be such prejudice nor that the tribunal should not have given weight to it. In the light of the agreed likely prejudice, the tribunal’s task was to weigh the competing public interests for and against disclosure. There was little if anything that could be advanced by way of concrete evidence in that respect. It was a matter of judgment for the tribunal in the light of the facts.” 18. In relation to the adequacy and rationality of the reasons, she concluded that the central issue was “that the MMPR would be used in [NAME_7] which had an older population than [NAME_6], and the use of the MMPR was not limited to the younger age group” (at [24]). Furthermore, “the older age group had capacity for more dangerous and violent behaviour” and “it was not irrational for the tribunal to accept that that age group would be better able to develop countermeasures in the light of that evidence” (at [25]).

19. UTJ Markus noted that the [NAME_8]’s decision was reached in the light of the extent and detail of what is already in the public domain, the supervision in the [NAME_6] and [NAME_7], and the requirement to record incidents. In her judgment, the case advanced by the appellant “did not call for any more detailed explanation than this” especially given that she had “provided little specific evidence as to the difficulties which are encountered” by not having access to the full un-redacted MMPR (at [27]).

20. As for the second ground of appeal, the judge analysed the decisions in R (SG) v. Secretary of State for Work and Pensions [2015] UKSC 16 and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 and concluded in pithy terms (at [36]): “The present case does not fall within the principles stated by the Supreme Court in the above decisions. The relevant provisions of FOIA are not ambiguous, there is no issue [NAME_5], and (even if this could in principle be relevant) FOIA does not incorporate or reflect the provisions of Article 3.1. Article 3.1 UNCRC has no application in this case.” The Freedom of Information Act 2000

21. Section 1(1) FOIA grants individuals a right of general access to information held by public authorities. This encompasses a right to be informed whether particular information is held and, if it is, to have that information communicated to them.

22. Section 1(1) is subject to exemptions articulated in Part II of the Act. The effect of the relevant exemption is explained in section 2(2) as follows:

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 7

“In respect of any information which is exempt information by virtue of any provision of Part II, section 1(1)(b) [referring to the communication of information] does not apply if or to the extent that – (a) the information is exempt information by virtue of a provision conferring absolute exemption, or (b) in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” 23. There is no suggestion that the MMPR benefits from an absolute exemption but section 31(1)(f) covers the disclosure of information which “would, or would be likely to, prejudice… the maintenance of security and good order in prisons or in other institutions where persons are lawfully detained”. Thus, if (as was conceded by [NAME_28]), section 31(1)(f) is engaged, the decision turns on balancing the public interests justifying exemption with those justifying disclosure.

24. Where a public authority refuses to disclose information in reliance on one or more exemptions in Part II FOIA, section 50(1) permits the applicant a right of review by the [NAME_4]. There is then a further right of appeal to the [NAME_8] [NAME_5] section 57 whereupon the [NAME_8] has jurisdiction to decide, de novo on the merits, whether the decision of the [NAME_4] is “in accordance with the law”: see section 58. This judgment following this rehearing generates the findings of fact from which any other challenge must spring.

25. Further rights of appeal are available in each case with leave, first, to the Upper Tribunal and thereafter to this court; these are limited to correcting errors of law: see sections. 11-14 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA”) and the explanation of the proper approach to such reviews in Department for Work and Pensions v Information Commissioner [2016] EWCA Civ 758 [2017] 1 WLR 1 per Lloyd Jones LJ at [34]. Although Lloyd Jones LJ dissented on two grounds, this analysis of the approach was also reflected by Richards LJ (at [60]-[61]) and Lord Dyson MR dealt only with the areas in which there was disagreement. In similar vein were the observations in Criminal Injuries Compensation Authority v Hutton [2016] EWCA Civ 1305 per Gross LJ (summarised at [57]). Irrationality

26. [NAME_44] argues the appeal on two distinct grounds. First, he submits that the Upper Tribunal was wrong to conclude that the [NAME_8]’s decision that the balance of the public interest favoured non-disclosure of the unredacted MMPR was not irrational: the contrary decision was, he submits, irrational and unreasonable in the Wednesbury sense. To that end, in his skeleton argument, if it was necessary, he sought to withdraw the concession that section 31(1)(f) of the FOIA was engaged, that is to say that disclosure of the unredacted MMPR would be likely to prejudice the maintenance of security and good order in institutions where persons are lawfully detained. [NAME_44] abandoned that latter submission before us but he did argue an alternative formulation that the threshold which resulted in section 31(1)(f) being engaged was low and had little relevance to the balancing exercise which had to be undertaken in relation to the competing public interests. He also explained that [NAME_28] intended the concession to be based on the position of adults although it was made in the context of the MMPR which was concerned with children and young persons.

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 8

27. Logically, it is necessary first to deal with the argument that little weight should be attached to the concession. In R (Lord) v Secretary of State for the Home Department [2003] EWHC 2073 (Admin), construing similar words in the Data Protection Act 1998, Munby J (as he then was) stated at [100] that the word “likely”: “connotes a degree of probability where there is a very significant and weighty chance of prejudice to the identified public interests. The degree of risk must be such that there ‘may very well’ be prejudice to those interests, even if the risk falls short of being more probable than not” That formulation was adopted by the Information Tribunal in Hogan v Information Commissioner [2010] 1 Info LR 588 (at [34]-[35]) which also referred to “a real and significant risk”. In turn, [NAME_45] was accepted as accurate in Department for Work and Pensions v [NAME_4] (supra) at [27] and [60].

28. When reaching its conclusion, the [NAME_8] itself had to assess and then balance the prejudice between disclosing and maintaining the exemption: [NAME_28]’s assessment of the significance of the competing considerations is not to the point; it was for the [NAME_8] to reach its own conclusion. The suggestion that it has little significance, however, is incorrect. The features which justify the engagement of section 31(1)(f) are equally relevant to the potential prejudice which falls on one side of the balance and, without being conclusive, may make it more difficult (but not necessarily impossible) to say that the countervailing arguments to disclosure are non-existent or so diaphanous that a decision to uphold the decision of the [NAME_4] is perverse, irrational or unreasonable. That is particularly the case given that no issue was taken before the [NAME_8] with the conclusion expressed by the [NAME_4] in the decision dated 27 March 2014 (based on the statistics set out at [28]) that the prejudice caused would occur “relatively frequently”.

29. Turning to the substantive argument, it is first necessary to underline what is at issue in these proceedings. This case is not about a challenge to the justification of the techniques deployed in the MMPR. Neither is it about discovering, in general terms, how children and young offenders might be restrained in appropriate circumstances (although that would assist transparency). In my judgment, the descriptors and that which is not redacted are sufficiently broadly defined to identify the end point of the technique if not the method of reaching it. To take the example identified above, “inverted wrist hold – thumb only” obviously involves holding and controlling the young person’s arm, hand and thumb and, presumably, inverting the wrist, without applying undue pressure or pain. If [NAME_28] wishes to challenge the use of this technique in all and any circumstances, the fact that she does not know how staff are trained to apply it does not impact on the generality of the point that she wishes to make. In that regard, the [NAME_4] and the [NAME_8] had the unredacted MMPR and, if it was thought that the terms of redaction were themselves misleading, I have no doubt that would have been exposed as a relevant factor: this was not suggested as a matter of concern and it was not suggested that we see the unredacted MMPR.

30. A second, preliminary, point concerns the relevant evidence upon which reliance can be placed for the purpose of determining irrationality. In APPGER v Information Commissioner & Foreign and Commonwealth Office [2013] UKUT 560 ([NAME_46]), the point was made at [75]-[76]: “75. In our view correctly, it was accepted before us by the FCO and the [NAME_2] that when assessing competing public interests [NAME_5] section 27 of FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would

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likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote… 76. Such an approach requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice and (b) benefits that the proposed disclosure of the material in respect of which the section 27 [or for the purpose of these proceedings, the section 31] exemption is claimed would (or would be likely to or may) cause or promote. Plainly that includes an identification of the relevant material and the circumstances in which it was provided to or obtained by the body claiming the section 27 [or 31] exemption.” 31. In written submissions, [NAME_44] focussed on the word “proof”, and submitted that this placed a requirement on the [NAME_8] for all conclusions regarding prejudice and the public interest to be based on the evidence put to them by witnesses at trial. As is obviously correct, however, it became clear that he agreed that the evidence included all the material that [NAME_32] had adduced to the [NAME_4] that was available to the [NAME_8]. This included the correspondence between [NAME_28] and [NAME_32] and that between the [NAME_4] and [NAME_32], the redacted and unredacted MMPR and the written evidence and submissions.

32. Furthermore, it was not in issue that the nature of such an assessment clearly included predictions of what would or was likely to happen in the event of disclosure.

Accordingly, “actual harm” and “actual benefit” encompass risk of actual harm and real chance of benefit: see Department of Health v Information Commissioner and Lewis [2015] UKUT 0159 ([NAME_46]) at [25]). Thus, “the tribunal should take account of any consequences that can readily be anticipated as realistic possibilities”: see London Borough of Camden v. Information Commissioner and YY [2012] UKUT 190 ([NAME_46]) at [11].

33. Turning to the appeal itself, it amounts to an assertion that the [NAME_8] (and thus the [NAME_9]) acted irrationally and failed to provide reasons for rejecting the application. Making the same point another way, it is contended that the conclusion that prejudice would arise should the MMPR manual be disclosed was wholly unsupported by evidence to the extent that the decision could be described as perverse: see R (Iran) v Home Secretary [2005] EWCA Civ 982 at [11], citing Miftari v SSHD [2005] EWCA Civ 481. The difficulty of this submission is only underlined by the proper construction of section 31(1)(f) FOIA, the concession that it was engaged and the decisions made in requests for other manuals concerned with training of restraint techniques which have been approved in R (FI) v SSHD [2014] EWCA Civ 1272, per Richards LJ at [72] and [2013] EWHC 498 (Admin), per [NAME_47] at [122]-[127] and [132]- [134]. 34. [NAME_44] further submitted that the [NAME_8] could not lawfully conclude that the public interest in disclosing the MMPR was outweighed by the prejudice that such disclosure would cause because it had not been argued that disclosure of the PCC had caused prejudice. He further pointed to the evidence of the witnesses that the risk of children learning how to resist restraint by reading the MMPR was so small as to be negligible. Furthermore, transparency favoured disclosure and it would be difficult for an independent reviewer of the use of restraint against those [NAME_5] 17 to do so without the unredacted manual.

35. The [NAME_8] acknowledged force in the argument that few young people were likely to consult the manual and seek to learn from it how to resist restraint: given the similarities between the Use of Force manual and the MMPR (which fact was not challenged), however, the critical feature was not those [NAME_5] 15 but the older young offenders and adults (where the

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argument for non-disclosure prevailed). That feature was underlined by UTJ Markus Q.C. in these terms: “10. [NAME_32]’s case to the Commissioner was that disclosure of the techniques in the MMPR could lead to some people developing countermeasures to their application and that, since some of the techniques used in the MMPR were also used in adult prisons, countermeasures could also be developed by adult prisoners…[NAME_32] commented on this, explaining that there were fundamental differences between the two manuals and between the populations of SCTs [sic] and [NAME_7]. … 20. Moreover, the finding of risk in relation to older detainees and adults was adequately supported by the evidence. [NAME_32] had explained that the MMPR was different from the PCC but that there were similarities with the Use of Force Manual which is in use in adult prisons. It supported this with an explanation of the background to the development of the manuals, the differences in techniques and the characteristics of the different populations in the institutions. The Appellant’s witness evidence was principally directed to the risk of children and young people learning from the MMPR, without distinguishing between different age groups. Insofar as she addressed issues relating to adult prisoners, the tribunal noted (paragraph 21) the Appellant’s view that there were considerable similarities between the MMPR and the Use of Force manual.” 36. Turning to the issue of review, it seems to me to be inconceivable that an independent reviewer of the use of techniques of restraint on children and those [NAME_5] 17 would not be able to have sight of the manual if it was important for the exercise then being undertaken. The contrast with disclosure through the FOIA is obvious: the applicant and motive blind nature of the operation of the legislation means that requested information would have to be disclosed not just to [NAME_28] but to any and every requester, including actual or potential offenders and their associates.

37. These were points made by the [NAME_8] who concluded that, given the extent and detail of what is already in the public domain, the benefit in terms of transparency and of public confidence in the lawfulness and humanity of the system was limited (at [20] cited at [15] above). In my judgment, although expressed in brief terms (doubtless given the nature of the material to be judged and the evaluation), the judgment of the [NAME_8] cannot possibly be said to be irrational, perverse or inadequately reasoned. On the contrary, it was an assessment that was well within the bounds of the legitimate exercise of its responsibilities [NAME_5] the FOIA. The same can be said for the decision of the [NAME_9]. I would reject this ground of appeal. The United Nations Convention on the Rights of the Child

38. The United Nations Convention on the Rights of the Child (“UNCRC”) is an international human rights treaty that grants all children and young people (aged 17 and [NAME_5]) a comprehensive set of rights. The UK signed the convention on 19 April 1990, ratified it on 16 December 1991 and it came into force on 15 January 1992. Article 3(1) provides: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 11

39. It is common ground between the parties that the best interests of all children should be at the forefront of any consideration of the balancing exercise. The issue is the relevance of the provision to this decision relating to disclosure, the extent of that relevance and whether appropriate regard was had to the interests of children. Furthermore, the parties differ on whether or not the UNCRC was relevant as a matter of law.

40. On the face of it, as an unincorporated treaty, the UNCRC gives rise to no legal rights or obligations in domestic law in or of itself. In [COMPANY_50] v Department of Trade and Industry [1990] 2 AC 418 Lord [NAME_23] explained at 500: ……“as a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not a part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned it is res inter alios acta, from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations it is irrelevant.” 41. On the other hand, challenging the observation by UTJ Markus QC that Article 3.1 UNCRC has no application, [NAME_44] relied on the observations of [NAME_52] in Smith v. Smith [2006] UKHL 35 at [78] that: “our domestic legislation has to be construed so far as possible so as to comply with the international obligations which we have undertaken… the interpretation chosen should be that which better complies with the commitment to the welfare of children which this country has made by ratifying the [UNCRC]”.

42. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [NAME_52] observed (at [23]) that Article 3(1) was a “binding obligation in international law” but she went on to explain (at [25]): “Further, it is clear from the recent jurisprudence that the [ADDRESS] will expect national authorities to apply article 3(1) of UNCRC and treat the best interests of a child as ‘a primary consideration’. Of course, despite the looseness with which these terms are sometimes used, ‘a primary consideration’ is not the same as ‘the primary consideration’, still less as ‘the paramount consideration’.” 43. The relevance of Article 3(1) UNCRC in domestic law was discussed by the Supreme Court in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16. [NAME_55] stated the position at [137]: “Article 3 UNCRC is contained in an international treaty ratified by the UK. It is binding on this country in international law. It is not, however, part of English law. Such a treaty may be relevant in English law in at least three ways. First, if the construction (ie meaning) of UK legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations. Second, international treaty obligations may guide the development of the common law… Neither has any application to this case. This

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 12

case is concerned with legislation, not with the common law, and it is not suggested that there is any room for doubt about the meaning of the regulations. Thirdly, however, the UNCRC may be relevant in English law to the extent that it falls to the court to apply the European Convention on Human Rights (ECHR) via the Human Rights Act 1998. [ADDRESS] of Human Rights has sometimes accepted that the Convention should be interpreted, in appropriate cases, in the light of generally accepted international law in the same field, including multi-lateral treaties such as the UNCRC…”.

44. Similar approaches were taken by Lord Reed at [82]-[83] and [NAME_52] at [211] and [217]-[218] respectively. [NAME_57] applied the same fundamental principles at [115] and [116] but observed that it was trite law “that, in this country at least, an international treaty has no direct effect unless and until incorporated by statute, but that it may be taken into account as an aid to interpretation in cases of ambiguity”. He was only considering the UNCRC for the purpose of interpreting the terms and notions in the text of the ECHR: see Demir v Turkey (2008) 48 EHRR 54, at [65], [67], [85].

45. The Supreme Court returned to the relevance of unincorporated treaties as a matter of domestic law in R (Yam) v Central Criminal Court [2015] UKSC 76. Without dissent, Lord Mance put the matter in this way at [35]: “In accordance with R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696 , R v Lyons [2002] UKHL 44; [2003] 1 AC 976 , para 13 and R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, para 56, per [NAME_59] with whose reasons [NAME_80] and [NAME_65] agreed at paras 1, 9 and 15, a domestic decision-maker exercising a general discretion (i) is neither bound to have regard to this country's purely international obligations nor bound to give effect to them, but (ii) may have regard to the United Kingdom's international obligations, if he or she decides this to be appropriate.” 46. Against that background, [NAME_44] submitted that the [NAME_9] was wrong to conclude that Article 3 had no application to this case because it fell within the first of the three propositions advanced by [NAME_55], namely that the meaning of the legislation was in doubt. He argued that the FOIA provisions were imprecisely worded and were clearly capable of being interpreted consistently with Article 3(1) UNCRC. Thus, that was the interpretation that should be adopted and that incorporated into the meaning of the phrase “public interest” that the best interests of children should be a primary consideration.

47. It is noteworthy, however, that the phrase “public interest” appears twice in section 2(2)(b) of the FOIA and represents but one specific example of the content of the public interest considerations arising [NAME_5] the provision. Furthermore, this argument assumes what [NAME_44] wishes to prove. Of all the multitude of public interest considerations that may be relevant in deciding what course is in the public interest in any case, it is this one that is said to inform the meaning of the provision from the outset. One could equally say that the phrase “public interest” is capable of requiring consideration to be given to the avoidance of discrimination on grounds of race, gender etc. All these matters may inform the content of the “public interest” which the decision-maker has to consider but they do not contribute to determining the meaning of the words themselves.

48. The relevance of the authorities relating to unincorporated treaty provisions in English law may arise where the meaning of a statute is ambiguous. In my judgment, however, in the

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 13

context of this case, the meaning of the words “public interest” is not in doubt. It could not be clearer. It is a well known and well understood concept both in law and in general use. Which factors are relevant to determining what is in the public interest in any given case are usually wide and various. However, this does not mean that it is necessary, at the outset, to resort to the UNCRC to determine the meaning of this perfectly common phrase. The factors that are relevant to the public interest in a statute will be informed by the statutory context and, if relevant factors are ignored or irrelevant ones are engaged by the decision-maker, the consequences in public law are well-known. None of this makes doubtful the meaning of a statute that uses the phrase “public interest”.

49. In my judgment, therefore, [NAME_55]’s uncontroversial first category of case, where an unincorporated treaty provision may be relevant in English law, does not apply here. [NAME_44] did not argue that either of the other examples were material in the present case.

50. In any event, however, it is obvious that the interests of children would be at the forefront of any consideration of the “public interest” in any case affecting the administration of institutions where children and young persons are detained. It is equally clear that they were at the forefront of the consideration by the [NAME_4] and the [NAME_8] of the issues in this case. Thus, it is very much in the interests of young persons detained in [NAME_7] that, if another inmate becomes disruptive, steps can be taken to control that inmate before harm can be caused to anyone else, to the inmate himself or to the staff. Put another way, as noted above, the phrase “public interest” appears on both sides of the statutory provision and is relevant both to disclosure and non-disclosure, there being factors affecting the interests of children pointing in each direction. This was the feature on which the [NAME_8] focussed, along with other factors, which do not need repeating in the context of considering the proper meaning of section 2(2)(b). This serves to underline that the content of the “public interest” balance in the case does nothing to render the meaning of the section doubtful.

51. The [NAME_8] had to balance the circumstances pertaining to [NAME_6] affecting those [NAME_5] 15 (where the relevant material in the form of the PCC has been disclosed without adverse effect) and those pertaining to [NAME_7] and prisons for those over 17 (where the Use of Force manual has not been disclosed in circumstances which have not been further challenged). For those between 15 and 17, a decision had to be reached as to which side of the line the MMPR fell. The [NAME_8] decided that it fell on the adult side for reasons which it gave, the most important of which, in my judgment, was the similarity between the MMPR and the Use of Force Manual. Reference to the safety implications for young people (echoing the conclusions of the [NAME_4]) demonstrates that, even without referring to the UNCRC by name, the interests of children were at the forefront of its thinking.

52. In mounting the appeal to the [NAME_8], [NAME_44] argued (at [29]) that disclosure “serves the interests of those children against whom the restraint techniques as set out in the MMPR are liable to be used”. He explained that he developed that submission orally, but I repeat the countervailing proposition that the fact that such techniques are available also serves the interests of children who might otherwise be at risk of violence from other children. Further, the disclosure to the world at large of the unredacted version of the MMPR does not directly correlate to the assessment of the best interests of any child. Whether or not UTJ Markus QC was right to say that Article 3.1 of the UNCRC had no application in this case, the public interests surrounding children were clearly at the heart of the decision making process. I would also reject this ground of appeal.

[2018] AACR 7 ([NAME_1] v (1) [NAME_2] (2) [NAME_3]) 14

Conclusion 53. The challenge to [NAME_32] proceeded before the [NAME_4] and, in my judgment, was dealt with rationally, reasonably and entirely in accordance with the principles applicable to FOI requests. The same can be said of the appeals to the [NAME_8] and the [NAME_9]. While recognising the real concern that [NAME_28] (and others) express about the use of restraint, the transparency of the disclosure of the mechanism for applying techniques of restraint is somewhat tangential to that concern, particularly as I have no doubt that any independent review of any use or misuse of restraint will require the reviewer to be fully informed of what was done and how it was done. In these circumstances, I would dismiss the appeal in its entirety. LORD JUSTICE MCCOMBE:

54. I agree. LORD JUSTICE NEWEY:

55. I also agree.

[NAME_1] v (1) [NAME_4] and (2) Ministry of Justice [2016] UKUT 0157 ([NAME_46])

GIA/428/2015 1

IN THE UPPER TRIBUNAL Appeal No. GIA/428/2015 ADMINISTRATIVE APPEALS CHAMBER

Before: Upper Tribunal Judge K Markus QC

DECISION The appeal is dismissed.

Representation:

Appellant:

[redacted] 1st Respondent: [redacted] 2nd Respondent: [redacted]

REASONS FOR DECISION

1. This appeal relates to a request for disclosure of an unredacted version of the Minimising and Managing Physical Restraint training manual (“MMPR”) which sets out the techniques of physical restraint used in Young Offender Institutions ([NAME_7]) and Secure Training Centres ([NAME_6]). On 27 March 2014 the [NAME_4] decided that the redacted information was exempt from disclosure [NAME_5] section 31(1)(f) Freedom of Information Act 2000 (FOIA) and that the public interest favoured withholding it. On 1 December 2014 the First-tier Tribunal dismissed the Appellant’s appeal.

2. I gave the Appellant permission to appeal following an oral hearing on 16 September 2015. An oral hearing of the appeal took place before me in London on 11 February 2016.

3. I have decided that there was no error of law by the First-tier Tribunal. The decision was not irrational and the reasons were adequate. Article 3.1 of the UN Convention on the Rights of the Child was not relevant to the decision.

Legislative framework 4. Section 1 FOIA requires public authorities to disclose information which they hold if it is requested. By section 2 the duty does not apply to “exempt information”, either because an absolute exemption is conferred by section 2(3) or because “in all the circumstances of the case, the public interest in maintaining the exemption outweighs the public interest in disclosing the information”: section 2(2)(b).

5. Section 31 is not one of the provisions subject to absolute exemption. So where that section is engaged, information must be disclosed subject to the application of the public interest test in section 2(2)(b).

6. Section 31(1)(f) provides:

GIA/428/2015 2 “(1) Information … is exempt information if its disclosure [NAME_5] this Act would, or would be likely to, prejudice –

…(f) the maintenance of security and good order in prisons or in other institutions in where persons are lawfully detained, …”

Background 7. The Appellant is a qualified social worker and has considerable expertise in the area of children’s rights. In particular, she has had a long-standing interest in and concern about use of restraint techniques on children in custody. She was a member of the expert panel for Lord [NAME_30] QC’s independent inquiry into the use of restraint and other measures in respect of children in custody. Between 2000 and 2012 the Appellant was National Co-ordinator of the [NAME_29]. During that time she had made a request [NAME_5] for full disclosure of the Physical Control in Care (PCC) restraint manual which was then in use in [NAME_6]. The Youth Justice Board refused disclosure, relying on section 31(1)(f) FOIA. The Commissioner ordered disclosure on the ground of the public interest in disclosure, taking into account the level of debate and controversy surrounding the use of physical restraint and the evidence that those techniques can result in physical harm. In 2012 the Commissioner upheld an exemption [NAME_5] section 31(1)(f) in relation to a restraint manual for use in adult prisons (“The Use of Force”), on the basis that there was a distinction between the use of distraction techniques in [NAME_6] and restraint techniques used in prisons.

8. The MMPR was produced following an independent review of restraint procedures in secure settings for juveniles, which was conducted following the deaths of two children in [NAME_6] during or following physical restraint. It is used in [NAME_6] (which accommodate children aged between 12 and 17 years of age) and [NAME_7] (which accommodate children and young people up to the age between 15 and 21 years). The publicly available copy of the MMPR contained extensive redactions, although it indicated the nature of the information which had been removed.

9. On 12 July 2012 the Appellant made a request of the Ministry of Justice (“[NAME_3]” asking for a full, unredacted, copy of the MMPR. [NAME_32] refused, relying on section 31(1)(f) (law enforcement) and section 38(1)(a) and (b) (health and safety) FOIA. The Appellant complained to the Commissioner. 10. [NAME_32]’s case to the Commissioner was that disclosure of the techniques in the MMPR could lead to some young people developing countermeasures to their application and that, since some of the techniques used in the MMPR were also used in adult prisons, countermeasures could also be developed by adult prisoners. The Appellant had disputed [NAME_32]’s assertions, in particular that there was a risk of young people developing countermeasures. She said that, although the PCC manual had been in the public domain, there was no evidence of those detained in [NAME_6] developing countermeasures. [NAME_32] commented on this, explaining that there were fundamental differences between the two manuals and between the populations of [NAME_7].

11. The Commissioner accepted the case put by [NAME_32] and decided that the information was likely to prejudice the maintenance of security and good order in

GIA/428/2015 3 [NAME_7] and adult prisons. He considered the public interest arguments for and against disclosure and decided that on balance the public interest favoured withholding the information. As a result he did not need to consider section 38, and that has not been in issue in the proceedings before the First-tier Tribunal or the Upper Tribunal.

12. Before the First-tier Tribunal the Appellant did not challenge the Commissioner’s decision that section 31(1)(f) was engaged, but challenged his conclusion as to the public interest. The Appellant provided a witness statement in which she expressed her concerns about the risks of restraint, concerns about the deliberate infliction of pain on children and the importance of openness and transparency. She adduced three witness statements from individuals who were knowledgeable in issues relating to the detention of children and which explained the basis of their opinions, which were shared by other individuals and organisations concerned with the rights of detained children, that the MMPR should be fully disclosed. They raised a range of issues including the risks to children arising from secrecy and associated abuse of power, the vulnerability of detained children, the need for openness to enable effective monitoring and review of incidents, and that it was highly unlikely that detained children would use the manual to subvert discipline.

13. In its reasons the First-tier Tribunal summarised the respective positions of the Appellant, [NAME_32] and the Commissioner and also summarised the evidence of the Appellant and each of her witnesses. The tribunal’s conclusions were as follows: ‘17. The Tribunal noted the considerable amount of information which had been placed in the public domain about MMPR. The online (redacted) version is 154 pages long; redactions occur on approximately 65 pages. For each redaction, this version sets out an indication of the nature of the information which has been removed For example on page 27 “1.4.2 Inverted wrist hold – thumb only” the first redaction has been replaced by the text:- “This sentence has been redacted. It describes how members of staff will take hold and control the young person’s arm, hand and thumb without applying undue pressure or pain when employing the inverted wrist hold.” 18. The text of the manual then continues with the sentence:- “It must be noted that the technique applied in this format may raise the risk of fracture dislocation and ligament tendon damage to the thumb” 19. Throughout the document as published there are similar warnings; at page 55 (“2.8 Thumb flexion prone, supine and on side”):- “However, the use of a pain inducing technique may be justifiable if that is the only viable and practical way of dealing with a violent incident which poses an immediate risk of serious physical harm to the young person, other young persons or staff.” 20. The Tribunal considered that given the extent and detail of what is already in the public domain the benefit in terms of transparency and of public confidence in the lawfulness and humanity of the system was limited. It noted the extent of supervision of the detention of young people and the need for recording of incidents. The Tribunal did not consider that the investigation of incidents would be obstructed by the protection of the contents of the MMPR and its non-disclosure to the world at large.

GIA/428/2015 4 21. It acknowledged that there was some force in the argument that few young people were likely to consult the manual and seek to learn from it how to resist restraint. The Tribunal noted that MMPR had been developed for an older age group than those detained in [NAME_6]. The client group within [NAME_7] was older and could demonstrate the capacity for a higher level of dangerous and violent conduct to staff and other clients than those within [NAME_6]. In developing the techniques to safely and humanely control such clients; techniques used for adult prisoners and set out in the “Use of Force” manual used in adult prisons had been considered and where appropriate adopted or adapted. The Tribunal considered that the relevance of the manual to the far larger numbers of potentially violent adults within the prison sector, some of whom would clearly be capable of learning from and applying the manual, was decisive (it may be noted that [NAME_28] was of the view that there were considerable similarities between MMPR and “Use of Force”; paragraph 7 above). The Tribunal endorsed the conclusion of the ICO in his letter to [NAME_28] of 11 July 2013:- “On balance, by quite a margin, the likely threat to the good order and security of [NAME_7] and prisons and the safety implications of this for young people and staff in both [NAME_7] and prisons favours non-disclosure of the withheld information.” ‘

Discussion 14. The Appellant appeals against the First-tier Tribunal’s decision on two grounds: that the First-tier Tribunal failed to provide adequate reasons for its decision and/or that the decision was irrational; and that it failed properly to apprehend and discharge its obligation to treat the best interests of the child as a primary consideration pursuant to article 3 of the United Nations Convention on the Rights of the Child (UNCRC).

Inadequate reasons/ irrationality 15. In R (Iran) v Home Secretary [2005] EWCA Civ 982, at [9] – [15], the Court of Appeal gave guidance as to scope of an appeal for error of law including on grounds of irrationality or inadequate reasons. All parties are agreed that these principles apply here. [ADDRESS] of Appeal said that “perversity” represents a high hurdle. In addition to decisions that are irrational or unreasonable, it includes making material findings of fact which are wholly unsupported by evidence. As for reasons, they need not be elaborate nor deal with every argument presented. The reasons must be sufficient to enable the parties and the appeal tribunal to understand why the decision was reached and “the issues the resolution of which were vital to the …. conclusion should be identified and the manner in which he resolved them explained.” This is reinforced by Lord Hope’s observation in Jones v First-tier Tribunal and Criminal Injuries Compensation Authority [2013] UKSC 19 at [25]: “It is well established, as an aspect of tribunal law and practice, that judicial restraint should be exercised when the reasons that a tribunal gives for its decision are being examined. The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.” 16. On behalf of the Appellant, [NAME_75] submits that the First-tier Tribunal’s decision as to public interest was irrational because it was not supported by evidence. He submits that it was based on speculation as to the respective

GIA/428/2015 5 harms or benefits of disclosure rather than weighing actual harm and actual benefits based on evidence of actual harm. He relies on the decision of the three judge panel of the Upper Tribunal in APPGER v Information Commissioner and Foreign and Commonwealth Office [2013] UKUT 560 ([NAME_46]) addressing the nature of the public interest decision in relation to a qualified exemption (in that case, section 27 FOIA): ”75. In our view correctly, it was accepted before us by the FCO and the [NAME_2] that when assessing competing public interests [NAME_5] section 27 of FOIA the correct approach is to identify the actual harm or prejudice that the proposed disclosure would (or would be likely to or may) cause and the actual benefits its disclosure would (or would be likely to or may) confer or promote…

76. Such an approach requires an appropriately detailed identification, proof, explanation and examination of both (a) the harm or prejudice and (b) benefits that the proposed disclosure of the material in respect of which the … exemption is claimed would (or would be likely to or may) cause or promote. Plainly that includes an identification of the relevant material and the circumstances in which it was provided to or obtained by the body claiming the … exemption.” 17. This does not mean, however, that there must be evidence of harm having occurred. The nature of the assessment is that it will often involve predictions as to what will or is likely to happen in the event of disclosure. “Actual harm” and “actual benefit” includes, respectively, risk of actual harm and real chance of benefit: Department of Health v Information Commissioner and Lewis [2015] UKUT 0159 ([NAME_46]) at [25]. As Upper Tribunal Judge Jacobs said in London Borough of Camden v Information Commissioner and YY [2012] UKUT 190 ([NAME_46]) at [11], “the tribunal should take account of any consequences that can readily be anticipated as realistic possibilities.” 18. In the present case, the Appellant had accepted the Commissioner’s decision that prejudice was likely. I have summarised the basis of that decision. It is not now open to her to contend that there was not likely to be such prejudice nor that the tribunal should not have given weight to it. In the light of the agreed likely prejudice, the tribunal’s task was to weigh the competing public interests for and against disclosure. There was little if anything that could be advanced by way of concrete evidence in that respect. It was a matter of judgment for the tribunal in the light of the facts.

19. The tribunal made clear findings as to the risks of disclosure and consequent public interest in withholding the information. These are at paragraph 21. The tribunal accepted that there was some force in the Appellant’s argument that few young people were likely to consult the MMPR and seek to learn from it, but it found that the decisive risk was in relation to older detainees in [NAME_7] and adult prisoners. It is clear that the tribunal considered the risk to be substantial with the potential for serious harm (the threat to good order and security, and the safety implications).

20. The tribunal’s conclusion at paragraph 21 was consistent with the conceded position as to prejudice. Moreover, the finding of risk in relation to older detainees and adults was adequately supported by the evidence. [NAME_32] had explained that the MMPR was different from the PCC but that there were similarities with the Use of Force Manual which is in use in adult prisons. It had supported this with an explanation of the background to the development of the manuals, the

GIA/428/2015 6 differences in the techniques and the characteristics of the different populations in the institutions. The Appellant’s witness evidence was principally directed to the risk of children and young people learning from the MMPR, without distinguishing between different age groups. Insofar as she addressed issues relating to adult prisoners, the tribunal noted (paragraph 21) the Appellant’s view that there were considerable similarities between the MMPR and the Use of Force manual.

21. Next, [NAME_44] submits the tribunal gave inadequate weight to or explain how it had addressed the Appellant’s evidence and arguments. He makes four specific challenges in this respect.

22. First, he says that there was significant unchallenged evidence put forward by the Appellant that there was a “vanishingly low” risk of detainees developing countermeasures. This challenge cannot stand in the light of the Appellant’s acceptance of the prejudice to security and good order on the basis of this very risk. Moreover, the Appellant’s evidence as to low risk largely focussed on children and young people. [NAME_44] now seeks to persuade this tribunal that the same reasoning applies to older detainees and adults, but this is simply an attempt to reargue the facts.

23. Second [NAME_44] says that the First-tier Tribunal failed to address the fact that the PCC Manual had been disclosed fully without the negative consequences identified by [NAME_32]. But the Commissioner had addressed this in deciding that section 31(1)(f) was engaged, and the Appellant had conceded that part of the decision. To the extent that this issue remained to be addressed as a matter of weight, in the public interest balancing exercise, the First-tier Tribunal had summarised [NAME_32]’s and Commissioner’s positions (paragraphs 6 and 8) and, at paragraph 21, it accepted that few young people were likely to learn from the manual but made a clear finding that different considerations applied to the older population.

24. Third, [NAME_44] says the tribunal was mistaken in fact to find that the MMPR was developed for an older age group than those in [NAME_6] and points to the statement in the Manual that it was designed for use on young people between the ages of 12-17. It may be that the phraseology used by the First-tier Tribunal was not wholly accurate, but reading paragraph 21 along with the tribunal’s summary of the evidence, what mattered was that the MMPR would be used in [NAME_7] which had an older population than [NAME_6], and the use of the MMPR was not limited to the younger age group. The First-tier Tribunal had been provided with evidence of the origins of the PCC for a younger age group and that the MMPR could be used more widely than [NAME_5] 18s (page 93). The Commissioner’s decision at paragraph 23 summarised the evidence as to the development of the MMPR and the PCCP for different age groups and the First-tier Tribunal had this in mind (paragraph 8). The evidence that there was overlap between the techniques used in [NAME_7] and [NAME_6] (eg page 197) is not inconsistent with the tribunal’s decision. 25. [NAME_44] also says that, even if those in [NAME_7] have a greater capacity for dangerous or violent conduct than those in [NAME_6], it does not follow that they will better able to develop countermeasures if they have access to the MMPR. He says that there was no evidence to support that conclusion. But as summarised in the Commissioner’s decision notice at paragraph 24, [NAME_32] had explained that the older age group had capacity for more dangerous and violent behaviour.

GIA/428/2015 7 This was plausible and the First-tier Tribunal was entitled to accept it. It was not irrational for the tribunal to accept that that age group would be better able to develop countermeasures in the light of that evidence. In any event, this was implicit in the conceded position as to likely prejudice.

26. Finally, [NAME_44] submits that the Appellant had put forward copious evidence explaining why the public interest favoured disclosure which the tribunal failed to address. This submission is unsustainable. The tribunal’s summary of the Appellant’s evidence shows that it fully understood its import. The tribunal explained at paragraphs 17-20 why, nonetheless, it afforded limited weight to the benefits of disclosure. Its reasoning at paragraph 20 is a clear reference to the Appellant’s case as to the public interest in favour of disclosure. Having previously summarised the matters which she relied on there was no need to repeat them. It was the tribunal’s task to weight the competing factors and it did so.

27. Contrary to [NAME_44]’s submission, the tribunal’s conclusion that the investigation of incidents would not be obstructed by non-disclosure is explained by reference to the preceding paragraphs where it addressed the extent of information already published. The conclusion at paragraph 20 was expressly reached “given the extent and detail of what is already in the public domain”, the extent of supervision and the need for recording of incidents. The Appellant’s case did not call for any more detailed explanation than this. The high point of her evidence as to the impact of non-disclosure on the investigation of incidents was in the witness statement of [NAME_76] but this provided little specific evidence as to the difficulties which are encountered particularly given what was in the public domain.

28. I reject the first ground of appeal.

UN Convention on the Rights of the Child 29. The Respondents do not dispute that the interests of children should be considered as part of the public interest balancing exercise. But they say that the tribunal did that. The appeal was very largely about the interests of children. The tribunal referred to submissions by all parties which related to the interests of children. The evidence and submissions to the First-tier Tribunal did not indicate that the interests of children lay all on one side of the balance. For instance [NAME_32] relied on children’s interests in staff being able to use effective and safe restraint techniques and in there being good order in the institutions in which children are detained. I agree.

30. However, [NAME_44] submits that Article 3.1 of the United Nations Convention on the Rights of the Child (“UNCRC”), required the tribunal to do more than that. Article 3.1 provides that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. [NAME_44] says that this required particularly close focus on the interests of children. He relies upon the statement by [NAME_52] in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at [23] that Article 3.1 is a “binding obligation in international law”, and her decision in Smith v Smith [2006] UKHL 35 that domestic legislation should be construed as far as possible so as to comply with the state’s obligations [NAME_5]. He

GIA/428/2015 8 submits that, although Article 3.1 is not directly incorporated into English law, the obligation is applicable in the context of this decision and that FOIA should be construed as far as possible to comply with Article 3.1. [NAME_44] relies on the judgments of [NAME_57] in R (SG) v Secretary of State for Work and Pensions [2015] UKSC 16 and Lord Wilson in [NAME_77] v Secretary of State for Work and Pensions [2015] UKSC 47 at [41], along with guidance by the UN Committee on the Rights of the Child, as showing that Article 3.1 provides a substantive right, a fundamental interpretive legal principle and a rule of procedure requiring evaluation of the possible impact on the child or children concerned, and justification showing that the rights of the child or children have been taken into account.

31. The passages from the judgments upon which [NAME_44] relies are concerned with the nature of the duty [NAME_5] 3.1 where it applies, but it is important first to identify whether Article 3.1 applies at all. The relevance in domestic law of Article 3.1 UNCRC was discussed by the Supreme Court in SG. [NAME_55] stated the position at [137]: “Article 3 UNCRC is contained in an international treaty ratified by the UK. It is binding on this country in international law. It is not, however, part of English law. Such a treaty may be relevant in English law in at least three ways. First, if the construction (ie meaning) of UK legislation is in doubt, the court may conclude that it should be construed, if otherwise possible, on the footing that this country meant to honour its international obligations. Second, international treaty obligations may guide the development of the common law…Neither has any application to this case. This case is concerned with legislation, not with the common law, and it is not suggested that there is any room for doubt about the meaning of the regulations. Thirdly, however, the UNCRC may be relevant in English law to the extent that it falls to the court to apply the European Convention on Human Rights ("ECHR") via the Human Rights Act 1998. [ADDRESS] of Human Rights has sometimes accepted that the Convention should be interpreted, in appropriate cases, in the light of generally accepted international law in the same field, including multi-lateral treaties such as the UNCRC…” 32. A similar approach was taken by Lord Reed at [82]-[83] and [NAME_52] at [211] and [217]-[218]. [NAME_57] applied the same fundamental principles at [115] and [116], and he made it clear that he had regard to UNCRC because it was relevant to justification [NAME_5] 14 ECHR. Only Lord Kerr thought that the UNCRC might be directly enforceable in UK domestic law: see his discussion at [243]–[257]; but he recognised at [253] that this was a controversial position which was “unlikely to find favour in the courts of this country”. In [NAME_77] 3.1 was relevant to the Court’s consideration of Article 14 ECHR.

33. In ZH (Tanzania) Article 3.1 UNCRC was held to be relevant because of its incorporation into domestic law by section 11 of the Children Act 2004 and section 55 of the Borders, Citizenship and Immigration Act 2009 and its consequent relevance to whether an act was “in accordance with the law” [NAME_5] 8(2) EHCR. The courts have not yet said that unambiguous legislation should be construed consistently with Article 3.1 even where no Convention right is involved, as to which see the comments of [NAME_52] in Nzolameso v Westminster City Council [2015] PTSR 549 at [29].

GIA/428/2015 9 34. [NAME_44] submits that the courts have said that it should be assumed that Parliament does not legislate for or maintain on the statute book a power which can be exercised in a manner which is inconsistent with the UK’s treaty obligations [NAME_5]. In this regard he relies on the judgment of Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex p Venables [1998] AC 407 at 498-499. The House of Lords was there concerned with the exercise of the Home Secretary’s discretion [NAME_5] section 53(1) of the Children and Young Person’s Act 1933 as to the detention of young people during Her Majesty’s Pleasure. The Home Secretary had accepted that 44(1) of the 1933 Act, which provided that in dealing with a child or young person the court shall have regard to the welfare of the child, should guide the exercise of his discretion [NAME_5] section 53 and it was in that context that the UNCRC was relevant to the Home Secretary’s discretion. This decision was referred to in R (MP) v Secretary of State for Justice [2012] EWHC 214 (QB) to support the conclusion that Article 3.1 had to be considered as part of the application of Article 8: paragraph [175]. The above passage from Venables does not extend the principles affirmed by the Supreme Court in the more recent decisions to which I have referred. 35. [NAME_44] also relies upon the obiter comment of [NAME_52] in Smith v Smith [2006] 1 WLR 2024 at [78], that where two interpretations of domestic legislation are possible then the one which better complies with Article 3.1 UNCRC should be chosen. This analysis has not been followed by the Supreme Court in the above cases save in cases of ambiguous domestic legislation. [NAME_52]’s comments do not suggest that the court should depart from the clear meaning of a legislative provision.

36. The present case does not fall within the principles stated by the Supreme Court in the above decisions. The relevant provisions of FOIA are not ambiguous, there is no issue [NAME_5] and (even if this could in principle be relevant) FOIA does not incorporate or reflect the provisions of Article 3.1. Article 3.1 UNCRC has no application in this case.

37. It follows that ground 2 fails.

Conclusion 38. The First-tier Tribunal did not make any error of law and I dismiss the appeal.

Signed on the original Kate Markus QC on 24 March 2016 Judge of the Upper Tribunal