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

A 15-year-old detained at a Young Offenders Institution challenged his removal from association with other inmates as violating Article 3 ECHR. The Supreme Court rejected arguments that solitary confinement of under-18s is automatically inhuman or degrading, holding that Article 3 requires a fact-sensitive assessment of all circumstances rather than applying bright-line rules.

Facts

The appellant, AB, was a 15-year-old with a troubled background including learning difficulties, care orders, and a history of violence and sexual offending. From 10 December 2016 to 2 February 2017, he was detained at Feltham Young Offenders Institution on a ‘single unlock’ regime, meaning he could not leave his cell when other detainees were out, except with multiple officers present. This regime was initially imposed to protect officers from his history of assaults, and subsequently for his own protection after he provoked other detainees through racist abuse and threats. He spent approximately 22 hours per day in his cell with limited meaningful contact.

Background to Detention

AB had received multiple detention orders for offences including assault, criminal damage, and sexual offences. His behaviour at Feltham, including racist abuse towards other detainees, threats of violence, and inappropriate conduct, prevented his integration with other inmates. Despite attempts to move him between units, his behaviour consistently undermined integration efforts.

Issues

Two questions of law were raised:

1. Whether solitary confinement of persons under 18 is inherently inhuman and degrading contrary to Article 3 ECHR;
2. Whether, if not inherently prohibited, there is a single universal test requiring exceptional circumstances and strict necessity for such confinement to be lawful.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Reed delivered the judgment, with which Lords Lloyd-Jones, Sales, Hamblen and Stephens agreed.

First Argument Rejected

The Court rejected the argument that solitary confinement of under-18s is automatically a breach of Article 3. Lord Reed emphasised the established Strasbourg jurisprudence requiring a fact-sensitive approach:

ill-treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.

The Court noted that the European Court of Human Rights has never laid down precise rules governing solitary confinement:

In applying these criteria, the court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for article 3.

Role of Domestic Courts

Lord Reed clarified the proper role of domestic courts under the Human Rights Act 1998:

it is not the function of our domestic courts to establish new principles of Convention law.

The Court should follow Strasbourg jurisprudence ‘no more, but certainly no less’, and cannot adopt radically different approaches based on other international instruments interpreted by non-judicial bodies.

Status of UN Committee General Comments

The Court rejected treating General Comments from the UN Committee on the Rights of the Child as authoritative for legal interpretation purposes:

[T]he committee is not an exclusively legal and not an adjudicative body; its power under article 19 is to make general comments… Whatever its value in influencing the trend of international thinking, the legal authority of this recommendation is slight.

Second Argument Rejected

The ‘strict necessity’ test applied to physical force against detainees does not extend to solitary confinement. The Court found no support in case law for applying such a test, noting the distinct rationale for physical force cases involving the inherent humiliation of assault by those in power.

Implications

This judgment confirms that Article 3 ECHR challenges to isolation of young offenders must be assessed on a case-by-case basis considering all relevant circumstances, including: the reasons for isolation; the degree of social contact permitted; the conditions of detention; and the effects on health. The Court declined to create bright-line rules that would automatically find violations based on definitions of ‘solitary confinement’ or specified time periods. The judgment also provides important guidance on the limited authority of UN treaty body General Comments in domestic courts and reinforces the principle that domestic courts should not go beyond clear Strasbourg jurisprudence.

Verdict: Appeal dismissed. The Supreme Court rejected both arguments advanced on behalf of the appellant, holding that solitary confinement of persons under 18 is not automatically a violation of Article 3 ECHR, and that no strict necessity test applies. The approach of the lower courts, conducting a fact-sensitive assessment of all circumstances, was correct.

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