Sascha Wil­son

The Lon­don-based Privy Coun­cil has re­stored an award of al­most $2 mil­lion in dam­ages to a young man who was tor­tured and abused sex­u­al­ly and phys­i­cal­ly at the St Michael’s Boys In­dus­tri­al School and the St Ann’s Psy­chi­atric Hos­pi­tal.

In the land­mark judg­ment, Law Lords Bur­rows, Hodge, Leg­gatt, Rose and Richards over­turned the Court of Ap­peal’s de­ci­sion and re­stored the ini­tial com­pen­sato­ry and vin­di­ca­to­ry dam­ages that were award­ed by the tri­al judge.

To pro­tect the iden­ti­ty of the young man, who is now 19 years old, he will be re­ferred to as JM in this ar­ti­cle.

He suf­fers from a rare ge­net­ic dis­or­der called Prad­er-Willi Syn­drome (PWS).

This dis­or­der in­hibits phys­i­cal and cog­ni­tive de­vel­op­ment, pro­duces feel­ings of in­sa­tiable hunger lead­ing to obe­si­ty, and is as­so­ci­at­ed with be­hav­iour­al prob­lems.

Through his moth­er, JM filed a claim against the At­tor­ney Gen­er­al, al­leg­ing that his con­sti­tu­tion­al rights had been in­fringed. He was suc­cess­ful in his claim be­fore Jus­tice Ava­son Quin­lan-Williams, who award­ed him com­pen­sato­ry dam­ages of $921,200, plus vin­di­ca­to­ry dam­ages of $1,000,000.

How­ev­er, the At­tor­ney Gen­er­al ap­pealed and the Court of Ap­peal re­duced the com­pen­sato­ry dam­ages to $844,650 and re­moved the vin­di­ca­to­ry dam­ages.

In the judg­ment, how­ev­er, the Law Lords found that the Court of Ap­peal made an er­ror in over­rul­ing the tri­al judge’s find­ing that JM’s en­tire de­ten­tion at St Michael’s was un­law­ful.

“The im­pact on JM was re­al and sub­stan­tial rather than triv­ial or tech­ni­cal and there was no prompt and ef­fec­tive le­gal rem­e­dy avail­able to him. On these facts, there­fore, to send JM to an in­sti­tu­tion de­signed for of­fend­ers over the age of ten when he was a non-of­fend­er un­der the age of ten was a breach of JM’s right to the pro­tec­tion of the law.

“It fur­ther fol­lows that, in these cir­cum­stances, Ra­jku­mar JA was in­cor­rect to say, as he did, that, while the de­ten­tion of JM was un­law­ful af­ter his moth­er’s con­vic­tion on 30 June 2014, that did not con­sti­tute a breach of his right to pro­tec­tion of the law (so that there was on­ly such a breach af­ter 18 May 2015),” stat­ed Lord Bur­rows.

The Board con­clud­ed that Quin­lan-Williams was en­ti­tled to find, in the over­all con­text, that what JM suf­fered was an in­fringe­ment of his right not to be sub­ject­ed by the State to cru­el and un­usu­al treat­ment.

The Law Lords al­so found that the tri­al judge was en­ti­tled to hold that on the ex­cep­tion­al facts of this case, vin­di­ca­to­ry dam­ages were ap­pro­pri­ate.

“On these facts, the in­sti­tu­tion­al in­er­tia re­sult­ed in JM suf­fer­ing ap­palling phys­i­cal and sex­u­al abuse and ill-treat­ment over a five-year pe­ri­od. He was a child, with a ge­net­ic dis­or­der that is not it­self a men­tal ill­ness, who had com­mit­ted no of­fences and was de­tained in in­ap­pro­pri­ate in­sti­tu­tions for young of­fend­ers or for adults with men­tal ill­ness­es. His rights to se­cu­ri­ty of the per­son and to the pro­tec­tion of law were both in­fringed.”

The Board al­so found that the tri­al judge was jus­ti­fied in find­ing that his right not to be sub­ject­ed to cru­el and un­usu­al pun­ish­ment was in­fringed.

How­ev­er, they not­ed that even if that par­tic­u­lar right was not in­fringed, “there can be no deny­ing that he was in a ‘liv­ing hell’ at St Michael’s and that at St Ann’s, he was reg­u­lar­ly sent to a seclu­sion room, some­times with phys­i­cal re­straints.”

The Board al­so ruled that the Court of Ap­peal erred in law in de­cid­ing that no vin­di­ca­to­ry dam­ages were ap­pro­pri­ate.

“On the ex­cep­tion­al facts of this case, the Board con­sid­ers that the tri­al judge was en­ti­tled to make the high award she did and there­fore up­holds that award,” stat­ed Lord Bur­rows.

JM was re­moved from the care of his moth­er in Sep­tem­ber 2012 at the age of nine, af­ter his moth­er was ar­rest­ed and charged with child aban­don­ment and ne­glect.

He was sent to St Michael’s and in 2013, he was di­ag­nosed with PWS.

Near­ly two years lat­er, his moth­er was con­vict­ed and a mag­is­trate then or­dered that he be “com­mit­ted” to the boys’ in­sti­tu­tion un­til he turned 18.

Ev­i­dence was led that the St Michael’s staff pro­duced two care plans for JM, but none was im­ple­ment­ed. JM was bul­lied and phys­i­cal­ly and sex­u­al­ly abused by oth­er res­i­dents and staff.

Some of the in­ci­dents in­clud­ed be­ing burnt with in­sect spray and a lighter by three boys, beat­en with a piece of wood by a staff mem­ber and be­ing sub­ject­ed to oral sex and bug­gery by a 14-year-old res­i­dent.

A se­cu­ri­ty guard was as­signed to pro­tect him from oth­er res­i­dents in May 2016, but af­ter 30 days he re­quest­ed to be re­as­signed be­cause JM’s be­hav­iour was out of con­trol, and no oth­er guard was will­ing to take his place.

Months lat­er, in Oc­to­ber 2016, JM was trans­ferred to the St Ann’s Hos­pi­tal and he was cer­ti­fied as be­ing men­tal­ly ill.

Mul­ti­ple scars were ob­served about his chest, ab­domen, arms and face.

Lord Bur­rows not­ed, “Staff at St Ann’s strug­gled to man­age JM’s needs and there is no doubt that JM’s be­hav­iour was very chal­leng­ing.

“Among oth­er things, the notes record abu­sive, ag­gres­sive and sex­u­alised be­hav­iour, and the reg­u­lar need to re­sort to hold­ing JM in seclu­sion some­times us­ing re­straints.”

Based on her vis­it to the seclu­sion room at St Ann’s, the tri­al judge de­scribed it as a hole sur­round­ed with walls, no fur­ni­ture, no win­dows and no bath­room fa­cil­i­tates.

In line with the or­der of the Court of Ap­peal, the Law Lords or­dered that the to­tal amount of the dam­ages to be paid in­to court be placed on an in­ter­est-bear­ing ac­count.

It was fur­ther or­dered that pay­ments out of that ac­count are to be paid on ap­pli­ca­tion to the Reg­is­trar or a Mas­ter for ex­pens­es nec­es­sar­i­ly in­curred for the care, treat­ment, wel­fare and ac­com­mo­da­tion of JM, or for such oth­er nec­es­sary ex­pens­es es­tab­lished to be in his best in­ter­ests.

JM was rep­re­sent­ed Anand Ram­lo­gan SC, Robert Strang, Adam Ri­ley and Ganesh Sa­roop in­struct­ed by Free­dom Law Cham­bers while the state was rep­re­sent­ed by Howard Stevens KC and Kather­ine Bai­ley in­struct­ed by Charles Rus­sell Speechlys LLP.

Vic­tim’s lawyer wants per­pe­tra­tors brought to jus­tice

While the Privy Coun­cil rul­ing is a vic­to­ry for JM and his moth­er, their at­tor­ney Anand Ram­lo­gan says their bat­tle is not yet over.

JM is still in­sti­tu­tion­alised at a state-run fa­cil­i­ty, since his moth­er still lives un­der im­pov­er­ished cir­cum­stances and does not have the fi­nances to care for him and her home was deemed un­suit­able.

“The moth­er is re­lieved and hap­py (at the rul­ing) but still sad at the fact that she has not yet been re­unit­ed with her son. The moth­er is strug­gling, un­em­ployed and she loves her son very dear­ly and wants to try and pro­vide a more lov­ing, nur­tur­ing en­vi­ron­ment for them,” Ram­lo­gan said fol­low­ing yes­ter­day’s Privy Coun­cil rul­ing.

How­ev­er, he said the HDC has al­lo­cat­ed a home for them.

“We have an ap­pli­ca­tion be­fore the court for the state to pay for the home and the Privy Coun­cil judg­ment will cer­tain­ly help to ex­pe­dite the ap­pli­ca­tion,” he said.

Ram­lo­gan said the mon­ey spent by the state to fight the case over the past five years could have been bet­ter used to build a home for JM and his moth­er so that he could re­ceive the re­ha­bil­i­ta­tion and care he needs.

“We re­main con­cerned that the child re­mains in the care of the state and whether he is still a vic­tim of sex­u­al abuse and tor­ture, hav­ing re­gard to the his­to­ry of abuse at state in­sti­tu­tions and homes run by the state, and his vul­ner­a­bil­i­ty.”

De­scrib­ing the case as the worst mat­ter he has en­coun­tered in his 25 years of prac­tice, Ram­lo­gan said, “The tor­ture and sex­u­al abuse is a hor­ror sto­ry that no child should ever have to un­der­go at such a ten­der age. Sto­ries of sex­u­al abuse at chil­dren’s homes are not new but the ex­tent of the bul­ly­ing and fright­en­ing tor­ture of this child by both res­i­dents and staff alike must shock the na­tion’s con­science and prompt ur­gent re­form.”

He said the sys­tem was guilty of turn­ing a blind eye to JM’s plight and to date no one has been ar­rest­ed and charged.

“This is a mat­ter that has to be thor­ough­ly in­ves­ti­gat­ed and those who are guilty of the abuse should be brought to jus­tice... An in­ves­ti­ga­tion must be done to find how this case fell through the cracks,” he added.

He said it was ap­palling that when it was dis­cov­ered JM was be­ing abused at St Michael’s, he was sent to St Ann’s where the tor­ture and sex­u­al abuse be­came even worse, as adult pa­tients took ad­van­tage of him.

Not­ing that the $1 mil­lion vin­di­ca­to­ry dam­ages was the high­est ever award in le­gal his­to­ry, Ram­lo­gan said, “It re­flects the court’s out­rage and the grav­i­ty of the breach­es that oc­curred. Whilst no amount of mon­ey can com­pen­sate this child for the pain and suf­fer­ing he en­dured, I sin­cere­ly hope it can be used to get him the re­quired help.”