Criminal offences and the inherent jurisdiction: a necessary evil?

In the recent case of Re T [2021] UKSC 35, the Supreme Court approved the use of the High Court’s inherent jurisdiction to authorise the deprivation of liberty of a child, in circumstances where the conditions of the relevant statutory scheme under the Children Act 1989 were not met. The judgment touches on whether the High Court’s inherent jurisdiction can be used to make an order that will near-inevitably lead to the commission of a criminal offence. As such, it joins a very slim body of case law addressing when the state’s intention to break the law might be condoned, or at least not prevented, by the courts.

For some time now, Local Authorities have been between a rock and a hard place. They have various statutory duties towards “looked after” children under Part III of the Children Act (“CA”) 1989, including to provide secure accommodation under s.25 CA 1989 where certain conditions are met (usually where the child is a danger to themselves or others). They also have a positive duty to uphold the child’s rights under Articles 2 and 3 ECHR. However, regulations provide that “secure accommodation” within the meaning of s.25 CA 1989 must be approved by Secretary of State for that purpose. In addition, any service that meets the definition of “children’s home” in s.1 of the Care Standards Act (“CSA”) 2000 must be registered, and under s.11 CSA 2000 anyone who “carries on or manages” an unregistered children’s home is guilty of a criminal offence.

On the other hand, there is a recognised shortage of registered children’s homes; many of the children requiring secure accommodation are highly vulnerable and present as an emergency, and registration is not a quick process. In recent years, Local Authorities have taken to creating a bespoke care situation – usually, temporary rented accommodation with the provision of round-the-clock care workers – and allowing the placement to begin even before registration is complete, even though that situation would appear to breach s.11 CSA 2000 and the accommodation would not be approved within the meaning of the relevant regulations or s.25 CA 1989. Since the statutory scheme under s.25 CA 1989 is not available in those circumstances, Local Authorities have taken to asking the High Court to exercise its inherent jurisdiction to order the placement.

This situation has been recognised and lamented in previous judgments (see for example Dorset Council v AB [2020] EWHC 1098 (Fam), and Re S (Child in care: Unregulated placement) [2020] EWHC 1012 (Fam)). Matters came to a head in Re T, in which T argued (inter alia) that the use of the High Court’s inherent jurisdiction in this way was unlawful and/or a breach of her Article 5 ECHR rights, because it cut across a statutory scheme whose provisions were simply not met.

One issue raised by the appeal was whether the High Court could ever use its inherent jurisdiction if the outcome of doing so was the carrying on or managing an unregistered children’s home contrary to the offence-making provisions of s.11 CSA. The Secretary of State for Education submitted that the inherent jurisdiction could be used without risk of criminal liability. He submitted that a defence to the criminal offence would be made out, namely (i) necessity or duress of circumstances, as traditionally understood ; (ii) an expanded version of necessity or duress of circumstances so as to prevent a breach of Articles 2 and/or 3; or (iii) a special defence that should be “read in” under the “far-reaching” provisions of s.3 HRA (relying on ; Ghaidan v Godin-Mendoza [2004] UKHL 30 and also Sheldrake v DPP [2003] 2 WLR1629) where the placement was necessary and ordered by the High Court).

The Supreme Court dismissed T’s appeal. In respect of the criminal law arguments it:

1. Held that the criminal aspect was not a barrier to the High Court exercising its inherent jurisdiction. The Court’s order would authorise, but not require, the placement. It is sufficient for the court to be aware of the potential that such an offence may be committed by another and to examine how that impacts on the best interests of the child. Criminal consequences would be a matter for the criminal courts. There was no need to show that a defence would apply, but nor did the order of the court provide any immunity from prosecution [163, 168, 192].
2. Declined to find that, or discuss whether, any particular defence would apply on these facts [168];
3. Held that the High Court should exercise its inherent jurisdiction only where necessary/”dire and urgent” (which in the case of T, it was) [143, 150, 174, 176];
4. Held that the possible commission of a criminal offence did not override the positive duty imposed by Articles 2 and 3 ECHR, which still applied [174, 176];
5. Per Lady Arden, obiter: commented that it is for Parliament to provide any defence to s.11 CSA 2000 [184]; that s.3 HRA cannot be used to insert defences into a criminal offence [186]; that s.11 does not criminalise the “use” of unregistered homes, but rather visits the offence upon the “operator of the home” [192]. The Supreme Court did not consider in any detail who might be liable for the offence or how liability might arise (including by secondary liability) where the Local Authority arranged a placement to be carried out by third parties, under an order from the High Court. Lady Arden referred at [192] to the “operator” of the home as the potential offender (and suggested there that “the court is not the object of the prohibition”), and Lady Black referred to the “provider of the home” at [150].

From this judgment, criminal and public law practitioners may wish to note the following:

1. This joins an extremely slim body of case law in which a court has considered state conduct leading near-inevitably to criminal activity (the closest other example being perhaps Privacy International v Secretary of State for Foreign and Commonwealth Affairs [2021] 2 WLR 1333), and the only case in which the inherent jurisdiction has been invoked to do so. As in Privacy International, the court took pains to emphasise that its involvement would confer no immunity on those who went on to commit the offence in question. At [173] it was stated that this case should set no precedent as to the use of inherent jurisdiction – nonetheless, it indicates that there may be circumstances in which the inherent jurisdiction can be deployed notwithstanding the near-inevitable criminal consequences that may flow to someone (including the manager of any such accommodation, arguably an innocent bystander who might be surprised to discover that a High Court-ordered placement leaves her exposed to criminal liability); but
2. The Supreme Court made it clear that this judgment came through gritted teeth, in recognition of the dire situation facing children requiring urgent secure accommodation (described as the “well-known scandal of the disgraceful and utterly shaming lack of proper provision for children” by Lord Stephens at [166]). Practitioners may be unwise to rely on this judgment in anything other than similarly dire circumstances;
3. The court confirmed that the positive duties imposed on public bodies (and the courts) by the ECHR will not be overridden by consideration of possible criminal consequences, although it emphasised that there is a condition of necessity before the court will incur a positive operational duty to act [176].
4. The court declined to be drawn on whether and how any defences might apply, such that the judgment does little to expand understanding of how (or even whether) the defences of necessity and duress of circumstance operate, or how and when s.3 HRA might be deployed. Lady Arden explicitly rejected the proposed use of s.3 HRA to insert a defence into a criminal offence.[1] The proposed use of s.3 HRA would certainly have broken new ground – there is no case in which s.3 has been used to insert a whole new defence.
5. The judgment did not fully consider who might be found liable for the criminal offence in these circumstances and is silent on the question of secondary liability. In Moore (a case relating to care homes rather than children’s homes but concerning materially identical legislation) it was held that multiple entities could be liable for “carrying on” the same establishment – in that case, the housing provider and the charity providing the personal care. Practitioners may wish not to take too much comfort from the court’s obiter remarks that the “operator” or “provider of the home” would be the (only) one caught by criminal liability. Lady Arden’s view at [192] was that had s.11 CSA criminalised the “use” of unregistered care homes then the inherent jurisdiction could not have been deployed, but whether this view survives the principles of secondary liability for a criminal offence is unclear.

[1] Although in an article written some years earlier, Arden J. had suggested that s.3 might be used in this way: Criminal Law at the Crossroads: Crim. L.R. 1999, Jun, 439-459.