M.M. v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The applicant is a United Kingdom national, who was born in March 1987 and lives in Northern Ireland. He is represented before the Court by Ms T. Caul, a lawyer practising in Belfast. The applicant has requested anonymity and the Court has granted this request, under Rule 33 § 3 of the Rules of Court. The facts of the case, as submitted by the applicant, may be summarised as follows. On 20 June 1999 the applicant and his cousin were arrested on suspicion of car theft and damage and, at 5 p.m., taken to Antrim police station, where they were detained for questioning. The custody record shows that the applicant was given a meal at 6 p.m. He spoke with two of his sisters on the telephone, but transport difficulties prevented any member of his family from attending. He was interviewed in the presence of a social worker and a solicitor, both of whom advised the police that they did not consider that the applicant should be detained overnight because he had threatened to harm himself. The responsible police officer, however, decided that unless an appropriate adult could be found to ensure that the applicant would appear in court the following day, it would not be possible to release him. No adult could be found to provide the required surety. Shortly after midnight the applicant was charged with theft, taking and driving away a car and criminal damage. The police did not seek the applicant’s consent to take fingerprint and DNA samples, due to his “age and tearful condition”. At 1 a.m. the applicant and his cousin were taken to Lisnevin Juvenile Justice Centre, which is situated in Millisle, County Down, some 45 miles (72 kilometres) from Antrim police station. On arrival, at 2.30 a.m., the applicant was searched and told to undress and take a shower. He was given pyjamas to wear and placed in a small cell with no furnishings in the Scrabo Unit, used at Lisnevin Juvenile Justice centre for isolation and punishment. There was a plastic mattress on the floor, a blanket and a pillow. The floor was uncovered and there was one small window above head height. The applicant was frightened and did not know how long he would be held in the cell. Later that morning, around 10.30 a.m., the applicant was taken to Magistrates’ Court, where he was released on bail. Pursuant to Article 39 of the Police and Criminal Evidence (Northern Ireland) Order 1989, as amended by the Criminal Justice (Children) (Northern Ireland) Order 1998, the police are empowered to send a juvenile offender to a place of safety, which is defined as any juvenile justice centre, hospital, surgery or other suitable place. Articles 7 and 8 of the 1998 Order provide that children under 14 arrested without warrant for an offence other than homicide should be taken to a juvenile justice centre only on suspicion of committing a serious arrestable offence. The Human Rights Act 1998 came into effect in Northern Ireland on 2 October 2000. In 1999 the Social Services Inspectorate (“SSI”) inspected Lisnevin Juvenile Justice Centre as part of a programme covering all such institutions in Northern Ireland (“Report on the inspection of Lisnevin Juvenile Justice Centre 1999”). The SSI recommended, inter alia, the immediate suspension of the use of the Scrabo Unit. In a report published in March 2000, the Criminal Justice Review Group, composed of four senior civil servants and five independent assessors, expressed the view that Lisnevin Juvenile Justice Centre was not suitable for holding juveniles, and recommended that it should close (“Review of the Criminal Justice System in Northern Ireland”, HMSO). This treaty (hereafter, “the UN Convention”), adopted by the General Assembly of the United Nations on 20 November 1989, has binding force under international law on the Contracting States, including all of the member States of the Council of Europe. Article 3(1) of the UN Convention states: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative, authoritative, or legislative bodies, the best interest of the child shall be a primary consideration.” Article 37 provides: “States Parties shall ensure that: (a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. ... (b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time; (c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances. (d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision of any such action.” Article 40(1) provides: “States Parties recognise the right of every child alleged as, accused of, or recognised as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the reintegration and the child’s assuming a constructive role in society.” The Beijing Rules were adopted by the United Nations General Assembly on 29 November 1985. These Rules are not binding in international law; in the Preamble, States are invited, but not required, to adopt them. Rule 13 provides, inter alia, that detention pending trial should be used as a measure of last resort for juveniles, and for the shortest possible period of time. Whenever possible, detention pending trial should be replaced by alternative measures, such as close supervision, intensive care or placement with a family or in an educational setting or home.