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Supreme Court dismisses appeal concerning Article 3 ECHR and solitary confinement

Published:

Re: R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28

The Supreme Court has unanimously dismissed this appeal concerning the Appellant’s treatment in Feltham Young Offenders’ Institution and Article 3 of the European Convention on Human Rights.

The Appellant, AB, was held in Feltham Young Offenders’ Institution when he was 15 years old.

AB brought judicial review proceedings before the High Court, alleging (i) that his treatment at the institution between 10 December 2016 and 2 February 2017 amounted to inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights; and (ii) that his removal from association with other inmates during this period breached his right to respect for his private life under Article 8 of the European Convention on Human Rights.

The High Court dismissed his claim under Article 3 but allowed his claim in part under Article 8, on the ground that it was not in accordance with the law, as the SSJ had failed to comply with the Young Offender Institution Rules 2000. The Court of Appeal dismissed AB’s appeal on Articles 3 and 8, and the SSJ’s cross-appeal on Article 8. AB then appealed to the Supreme Court. He was granted permission to appeal on the Article 3 issue, but refused permission to argue that his treatment was unjustified under Article 8.

In the Supreme Court, AB made two arguments. First, 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 used exceptionally, and where the treatment is strictly necessary.

HELD: Appeal unanimously dismissed.

When questions arise in connection with Convention rights, section 2(1) of the Human Rights Act requires domestic courts to take into account relevant judgments and decisions of the European Court of Human Rights (“the European Court”). 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. That does not mean, however, that the domestic courts can or should substantially develop the European Court’s case law. Parliament’s purpose in enacting the Human Rights Act was to ensure that there is correspondence between the rights enforced domestically and those available before the European Court, not to provide for rights which are more generous than those available before the European Court.

On that basis, in determining this appeal, the Supreme Court’s starting point is the existing case law of the European Court. From that case law, a consistent approach to the application of article 3 of the Convention can be discerned. 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. Contrary to the argument made on behalf of AB, a different approach is not required or justified in the light of certain General Comments issued by the UN Committee on the Rights of the Child, which state that the solitary confinement of persons under 18 should be prohibited in all circumstances. Those Comments are not binding even in respect of the meaning of the UN Convention on the Rights of the Child, and would not be treated by the European Court as determinative of the question of whether any particular provision of the Convention has been breached.

The European Court has also not adopted any rule that the solitary confinement of a person under 18 will be compatible with article 3 of the Convention only if such treatment is “strictly necessary”. The European Court might adopt a “strict necessity” test in this context in the future, but it has not done so yet. It is not the function of the Supreme Court to anticipate such a significant development in the application of the Convention.

The Supreme Court accordingly rejects both legal arguments made on behalf of AB.

Ayesha Christie, Sarah Hannett QC, and Dan Squires QC were involved in this case.