Knife to test Court security

This case raises both some legal questions and probably some more worrying questions about Court security.

A Local Authority v D & Ors [2024] EWFC 61 (19 March 2024)

https://www.bailii.org/ew/cases/EWFC/HCJ/2024/61.html

Peel J was dealing with a case in which there was a three day final hearing involving four children and the LA plan for the younger two was adoption. The issue for this hearing and judgment was as to how the mother was going to be able to participate in this hearing, the mother having done something spectacularly unwise previously.

At a day when the case was not being heard in Court, the mother visited Court, passing through security. She went to the first floor toilets and then went back down to security and handed them a knife with a three inch blade and four inch handle, wrapped in plastic and bound in tape. It remains unclear as to how she brought this knife through security. (I can’t help but be reminded of the scene in The Godfather where a handgun is left for Michael Corleone in the cistern in the restaurant toilets to avoid detection when he is frisked – but of course we have no idea)

The mother filed a statement in which she said that she had done this to draw attention to knife crime and the laxness of Court security.

The Court Service (as in the administrative element not the judicial one) carried out a risk assessment and determined that the mother was no longer to be admitted to a Court building. This is under the HMCTS Protocol for Managing Potentially Violent People (“PVP Protocol”). This obviously came under even more focus following a life-threatening assault on a Judge in November 2023.

The mother’s solicitors also conducted their own assessment and concluded that they would not be prepared to have the mother attend their offices to participate in the hearing remotely. That’s also understandable – it is more than just one person agreeing to accept the risk as her representative – there are other lawyers, support staff and other clients and visitors to those offices whose safety has to be considered.

That left Peel J in a difficult situation – HMCS were saying that mother couldn’t come into the Court building (for understandable reasons), the solicitors couldn’t facilitate her coming to their offices for a remote hearing (for understandable reasons) yet the hearing involved her children and the possibility of adoption for which she needed to be able to participate and have her article 6 rights to a fair hearing.

The Court noted that nobody had asked for the HMCS risk assessment but that in any event these were not for public consumption.

No party has asked me for an order that the risk assessment carried out by the Court Service should be disclosed. I did not hear argument on this, but in my judgment, it is hard to see how it could ever be appropriate for a judge to order that such a document be provided to the potentially violent person and/or the parties in general. These are internal risk assessments carried out by, or on behalf of, HMCTS. They are not for public consumption.
On the other hand, a person affected by the assessment is entitled to have some sort of understanding of the basis of the assessment, i.e why a particular measure has been imposed. Here, the rationale for the risk assessment is not difficult to discern as the basic facts, outlined above, are clear. In some cases, the reasoning will be less obvious. It seems to me that it would usually be appropriate for the gist of the reasoning to be given to the affected potentially violent person, whilst taking care to ensure that none of the information provided prejudices or puts in danger a particular source of information. It will be for the potentially violent person, if dissatisfied with the arrangements resulting from the risk assessment, to apply to the court for further consideration of the steps required to enable access to justice. Although in this instance a court hearing was listed to consider the way forward, I would expect that in most cases it can be dealt with swiftly on paper.

Peel J decided that the mother should be permitted to attend Court for the final hearing but under some incredibly rigorous stipulations (note that I am absolutely saying that these are proportionate given the facts of the case – but they are on the face of them, very rigorous)

1. 
   In this case, given that remote attendance for M is not workable, it seems to me that M must be permitted to enter the court building for hearings provided that the following arrangements are put in place and adhered to:

i) M shall attend the building and be met by her legal representative at security, who should have passed through security before meeting M.

ii) M is not to be accompanied by anybody (for example a friend or associate) in the court building except her legal representatives and security.

iii) M is to go through full security checks, including passing through the arch, being wanded and being patted down.

iv) M’s mobile phone will be removed for the duration of her time in the court building, and returned to her when she leaves.

v) M shall, when not in court for the hearing(s), ordinarily stay in a separate consultation room which will be made available for her and her lawyers. The security staff will stay immediately outside the room.

vi) M is not permitted to take liquids into court.

vii) No fewer than 2 security guards will accompany her at all times save when she attends the toilet. Upon exiting the toilet, she will be thoroughly searched by security, and the toilets thereafter will be checked.

viii) 2 security guards will sit on either side of her in court. She will sit at the back of the court save when she gives her evidence.

ix) When the court hearing or court day finishes, there shall be a staggered exit so that M leaves the court building before anyone else involved in the case.

x) If M refuses to undertake any part of this process, entry may be barred or, if she has already entered, she may be excluded from the building.

1. I suggested these measures to the parties, who agreed them. The measures have been agreed with the local Court Service. In this respect, I note that (i) the Court Service has a duty to ensure the safety of all court users, (ii) it is the Court Service whose responsibility it is to follow the PVP Protocol and make the risk assessment and (iii) it is the Court Service which has to provide the resources to manage and mitigate the risk. It is not for a judge to make orders against the Court Service. The order I make will record the operative measures as recitals rather than incorporate them as orders. There would be no purpose in making an order which the Court Service is unable to fulfil, and to do so could create confusion, generate delay and perpetuate the risks. There needs to be consultation and cooperation between the Court Service, judiciary and the parties to ensure that access to justice can be provided in as practicable a way as possible.
2. The measures set out above in my judgment represent a fair balance of the competing rights, particularly under Articles 6 and 8, and a proportionate response to the potential threat.
3. At the risk of repetition, these measures which I have outlined will not be necessary or appropriate in each case. The facts of this case are unusual. The response to each PVP Protocol incident obviously depends on the circumstances, taking into account local demands, resources and practices.

Note also that the Judge had agreed those measures with the Court Service and was plain that it would not be appropriate for the Judge to make an order against the Court Service.

You may be wondering, as I was, why it wasn’t possible for the mother to attend remotely from her own home – she was living in a homeless person unit, which probably therefore does not have the necessary facilities for someone to be on their own in a room with reliable wi-fi and no risk of being overheard or interrupted.