R (on the application of AB) vs. Secretary of State for Justice - (09 Jul 2021)

Solitary confinement of a person under 18 is not automatically a violation of Article 3 of the ECHR

Human Rights

In present case, on 10 December 2016, the Appellant, AB, pleaded guilty to offences of indecent exposure and sexual assault, and was remanded in custody at Feltham Young Offenders’ Institution ("Feltham"). The background to the appeal is the appellant’s treatment while he was detained at Feltham Young Offenders’ Institution (“YOI”) between 10 December 2016 and 2 February 2017, when he was 15 years of age. Between 10 December 2016 and 2 February 2017, AB was placed on "single unlock" at Feltham, meaning that he could not leave his cell, when any other detainees were out of their cells, apart from some time in "three-officer unlock", which involved three officers being present whenever he left his cell. He had no contact with other detainees.

On 16 February 2017, AB issued a claim for judicial review against the Respondent, the Secretary of State for Justice ("the Secretary of State"). His claim was successful in part. The High Court decided that the Secretary of State had failed to comply with the Young Offender Institution Rules, 2000 and had breached Article 8 of the European Convention on Human Rights ("the Convention"). The High Court did not accept, however, that between 10 December 2016 and 2 February 2017 AB had suffered inhuman and degrading treatment in breach of Article 3 of the Convention. AB appealed against that latter part of the decision to the Court of Appeal. His appeal was dismissed.

Appellant submitted that, the solitary confinement of any person under 18 automatically violates Article 3 of the Convention; or, alternatively, that such treatment can only be regarded as compatible with Article 3 of the Convention if there are exceptional circumstances which render the treatment strictly necessary.

In order for treatment to constitute a violation of Article 3, the European Court has consistently held that, it must attain a minimum level of severity, which normally has to be assessed in the light of all the circumstances of the case. The application of Article 3 in relation to what can broadly be described as removal from association or solitary confinement has been considered by the European court in a substantial number of cases. The court has repeatedly held that, removal from association is not in itself inhuman or degrading.

Where there is a clear and consistent line of relevant case law of the European Court, the domestic courts should follow it unless there are exceptional circumstances which justify a different approach. In cases concerned with allegations of ill-treatment – including those concerned with the solitary confinement of adult prisoners and with the ill-treatment of detained children and young people – the European Court asks itself whether the ill-treatment has attained the minimum level of severity which is necessary for article 3 to apply. The minimum level is not fixed, but depends on "all the circumstances of the case". A range of matters are relevant, including the age of the applicant and the duration, purpose and effect of the treatment.

The European Court has not adopted any bright line rule that the solitary confinement of a person under 18 is automatically a violation of Article 3 of the ECHR. It is not open to the Supreme Court to depart from the European Court’s case law by creating such a rule itself. The Supreme Court rejects both legal arguments made on behalf of AB. Appeal dismissed.

Tags : SOLITARY CONFINEMENT RIGHTS VIOLATION