by Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
The Nuremberg defence of Nazi war criminals, "I was only following orders", was famously no defence. What if they had deployed it rather as a line of attack seeking damages for the trauma of having to inflict unimaginable horror on others?
Diana Smith, one of those responsible for the death of 15-year-old Gareth Myatt at Rainsbrook STC seems to have tried out the argument. Gareth died after the use of a form of restraint that involved partial asphyxiation; Diana Smith suffered post traumatic stress disorder; her claim for damages blamed the fact that the technique was lawful.
I have commented previously on the often-linked death of Adam Rickwood, the same year. I have drawn attention both to the shame of social work, that a registered social worker in charge should have sought to defend the lawfulness of the breach of Adam's human rights; and to social work's cause for pride, that the social workers on Lancashire's Safeguarding Children Board felt able to conclude that Adam's human rights had been breached, before the Courts had done so.
Adam died following a technique that involved a blow to the nose, while the technique that killed Gareth was,
Unfortunately, the Court of Appeal in the case of Smith v Youth Justice Board for England and Wales & Anor [2010] EWCA Civ 99 (16 February 2010) has sidestepped Diana Smith's use of the Nuremberg defence as a sword rather than a shield. It did so because it held, in effect, that even if the technique was lawful, she was not using it lawfully on that occasion, so it was disingenuous to blame the state for not having banned it."applied by three officers, one holding the trainee's head and forcing it forwards, and one holding him or her by the arm on either side. It works by inhibiting lateral chest wall movement, an effect exaggerated by increasing the degree of forward inclination. The procedure intentionally creates apnoea, with an obvious risk of asphyxia if it is used to excess." (para 2)
Two stark facts make the side-stepping of the issue inexcusable:
First, the extent of life-threatening incidents arising from the technique was so great that a significant number of them must have been "authorised":
Second, the Court of Appeal eventually found in C, R (on the application of) v Secretary of State for Justice [2008] EWCA Civ 882 (28 July 2008) that use of "authorised" techniques for "good order and discipline" was in breach of Article 3 of the European Convention on Human Rights (the absolute prohibition on torture, inhuman or degrading treatment)."The figures for Rainsbrook alone showed that in the twelve months before Gareth's death, SDE had been used 369 times. In almost one case in three some form of harm had been caused by it, and in almost a third of these - about 10% of the total - the harm had been life-threatening."
In consequence of these two points taken together, it seems at least highly probable that techniques that constitute torture, inhuman or degrading treatment have in fact frequently been inflicted on our children "authorised" by the state. The personal culpability of those who do so, or whether the state throws a protective blanket around them, is surely a live issue.
I know the answer to the question that I would like to see. We must exercise our own moral judgements, and be held to account for them, not rely on legality as a defence. As Nuremberg Principle IV expresses it,
See also:"The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility... provided a moral choice was in fact possible to him."
Leave a comment