COMMENT & ANALYSIS Blogs Act for UK Rights Blog What these children have done in the past doesn't make them any less human “The fact that these kids have actually been involved with crime, and some of them may have committed some serious crimes, doesn’t make them any less human.” So said Dr Andrew McDonnell, a clinical psychologist and expert in how to handle challenging behaviour, when reviewing undercover footage at Medway Secure Training Centre. The BBC Panorama programme reported on the abuse of teenage prisoners at the G4S-run Secure Training Centre. Medway Secure Training Centre houses seventy children, aged 14 – 17, who are vulnerable and in need of additional support. An undercover reporter working as a custody officer recorded a number of concerning incidents including the use of excessive and unnecessary force, as well as staff boasting about hurting children. Staff are also shown explaining how they do not report, or misreport, serious incidents to prevent G4S being fined for ‘losing control’ of the Centre. Would this be covered by human rights? The Human Rights Act is about all of us, including children, and it provides legal protection for 16 fundamental human rights. Several of these are particularly relevant to addressing abuse and neglect: The right not to be tortured or treated in an inhuman or degrading way (Article 3) covers serious harm, abuse or neglect. As an absolute right, the law makes it clear that this kind of treatment is never lawful. For example, this right was used to hold police to account for mistreatment that had a severe impact on a vulnerable young man. The right to respect for private and family life (Article 8) covers physical and mental well-being, including harm which is less severe than inhuman and degrading treatment. Whilst this right can be restricted by public officials, this can only be done if a law allows them to do so, the restriction has a legitimate aim, and if what they are doing is proportionate. This right has been applied in situations where people have been mistreated, including abuse of children and adults in care settings. On the face of what has been released so far, there are certainly human rights questions to be asked about the footage from Medway Secure Training Centre. But does the Human Rights Act apply? As Dr McDonnell says the children in question are human, and as such, the Human Rights Act protects them from harm and abuse from public officials. Importantly, the Human Rights Act also provides protection when public officials fail to take to prevent someone from risk of serious harm of abuse. It is likely that the Human Rights Act would apply in both of these ways. Firstly, although G4S is a private company, and not part of the State, running the Secure Training Centre falls within the scope of performing a public function. This means that when delivering such services private companies have a legal duty under the Human Rights Act. Additionally, just because a private company is delivering a public service does not mean State agencies no longer have a legal duty to ensure human rights are being respected. The rights in the Human Rights Act include positive obligations to protect people from harm. This can be particularly important when the risk to an individual’s human rights may come from a private person, or a company. If a public official (such as those responsible for commissioning or contracting out the service, or the police or regulators) is aware or ought to have been aware of the known and immediate risk to a person’s human rights, they should take action. So there will be important questions to ask about who knew about what was happening at Medway Secure Training Centre, what monitoring processes were in place, and what action was taken. Accountability Given the shocking footage it is unsurprising that five custody officers featured in the programme have since been arrested, and others are subject to internal disciplinary procedures. Quite rightly, questions are being asked about what has happened. Key to this is determining what kind of accountability there is when private organisations providing services are implicated in the harm of vulnerable children (or others). Legal action based on the Human Rights Act may be one of the avenues for accountability after the incidents at Medway Youth Training Centre. With a focus on organisational accountability (based on the actions of staff), the Human Rights Act is an important standard and safeguard. It has enabled reviews of organisational failures such as those at Mid-Staffordshire NHS Trust and the Hillsborough Public Inquiry. Human Rights Act cases have also been important reminders to public services that the people they work with are human, such as in the case of Cheshire West. In a world of increased provision by the private sector, and concerns that profit may come before people, the Human Rights Act helps counter this to ensure that whoever a person is, whatever they may have done, they are treated as a human.