Supreme Court dismisses solitary confinement appeal
22 July 2021
R (on the application of AB) v Secretary of State for Justice  UKSC 28
The Supreme Court has unanimously dismissed an appeal which considered whether treatment throughout a 55 day period in solitary confinement of a then 15-year-old appellant in Feltham Young Offenders’ Institution constituted a violation of Article 3 of the European Convention on Human Rights.
The case concerned the treatment of the Claimant, AB, whilst he was detained at Feltham Young Offenders’ Institution (FYOI) at the age of 15, between the period of 10th December 2017 and 2nd February 2017. AB had been remanded in custody at FYOI whilst awaiting sentence for indecent exposure and sexual assault. The pre-sentence report concluded that his risk of dangerousness was high, as was his risk of causing serious harm.
Throughout the above period at FYOI, AB had been placed under a “single-unlock” system, whereby 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. It was undisputed that he was placed under this regime for his own safety, as well as for the protection of others.
AB appealed to the Supreme Court to decide two questions. The first: whether the solitary confinement of persons under 18 automatically constitutes a violation of article 3 of the European Convention on Human Rights (“the Convention”). The second: if not, whether there is a universal test for the compatibility of solitary confinement of children, namely that “exceptional” circumstances must determine the treatment as “strictly necessary”.
Relevance of the jurisprudence from the ECtHR
The Supreme Court considered case law from the European Court of Human Rights to determine the interpretation of article 3 of the Convention, in light of the relevance of the United Nations Convention of the Rights of the Child (UNCRC).
Lord Reed, who delivered the unanimous judgment, outlined that where a question arises in connection with a Convention right, the courts are required by section 2(1) of the Human Rights Act 1998 to take into account any relevant judgment or decision of the European court of Human Rights: “the starting point, where a question has arisen in connection with article 3, is therefore the relevant judgments and decisions of the European court concerning article 3” (§39).
Whether solidary confinement of persons under 18 is automatically a violation of article 3
Referring to Ireland v United Kingdom (1979-80) 2 EHRR 25 §162, the Court noted the finding of the ECtHR, that in order to constitute a violation of article 3, treatment must “attain a minimum level of severity, which normally has to be assessed in light of all of the circumstances of the case”(§40) (emphasis added).
The Court went on to consider Ahmad v United Kingdom (2012) 56 EHRR 1 § 178, which accounts for a fuller range of factors relevant to determining whether there has been a violation of article 3, including:
the presence of premeditation; that the measure may have been calculated to break the applicant’s resistance or will; an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority; the absence of any specific justification for the measure imposed; the arbitrary punitive nature of the measure; the length of time for which the measure was imposed; and the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention (§ 42).
In its discussion, the Court emphasised the trend in judgments delivered by the ECtHR that aim to determine whether the ill-treatment has attained the minimum level of severity which is necessary for article 3 to apply. The Court described the approach taken by the Strasbourg court as one in which “that minimum level is not fixed, but depends on the circumstances of the case”(§ 50).
Further, and reiterating the ECtHR’s finding in Van der Ven v Netherlands (2004) 28 EHRR 46 at §51 the Court also clarified that removal from association has not thus far been found by the ECtHR to be in itself inhuman or degrading (§ 43, § 51).
With regard to the first question, whether the solitary confinement of persons under 18 automatically constitutes a violation of article 3, the Court placed weight on the consistent approach taken by ECtHR, in which a range of considerations must be taken into account to determine whether any such treatment can be regarded as inhuman or degrading. In the absence of Convention jurisprudence setting out a rule that applies in all instances of solitary confinement, close attention has to be paid to the full set of circumstances of each child to determine whether treatment is in breach of article 3. That was sufficient to dispose of the first question in favour of the Secretary of State.
Having further regard to the ECtHR case law, the Court also dismissed the appeal on the second point. First, the Court noted that the ECtHR had never laid down precise rules governing the operation of solitary confinement (§ 59). Moreover, in situations which have not yet come before the European court, domestic courts “can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law” (§ 59). It is for this reason that the Court rejected AB’s invitation to set out a definition of solitary confinement, and to hold that treatment satisfying that definition is automatically a violation of article 3 if it is imposed on a person aged under 18, at least if it exceeds a specified duration (§ 53). As explained by Lord Reed, doing so would “be a major departure from the principles currently laid down in the Convention jurisprudence” (§ 53).
The Court made clear that it is not the function of domestic courts to establish new principles of Convention law (§ 59). Quoting Lord Bingham of Cornhill in R (Ullah) v Special Adjudicator  UKHL 26;  2 AC 323, Lord Reed described the role of domestic courts as “to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less”.
Ultimately, the Supreme Court demonstrated regard for the consequences of taking a less conservative approach than that of the ECtHR. The Court stated that if it were to
go further than they can be fully confident that the European court would go, and the European court would not in fact go so far, then the public authority involved has no right to apply to Strasbourg, and the error made by the domestic courts will remain uncorrected. (§ 42)
As was the position in the Court of Appeal, this case demonstrates a reluctance by the Court to point to any “bright line” rule under which solitary confinement constitutes a violation of article 3. Instead, the Court adopted the approach taken by the Strasbourg Court, emphasising a need to consider the particular relevant factors in a given case when deciding whether treatment was degrading or inhumane.
Of course, without an agreed upon definition of solitary confinement under either domestic or International law, even if the Court were to have found that solitary confinement (as defined by the appellant) constituted a violation of article 3, it would still be the task of courts in future cases to take an fact-specific approach into deciding whether any such treatment could be considered as solitary confinement in the first instance.
Finally, the Court held that it was unable to consider the compatibility of AB’s treatment with article 3 on wider grounds, as invited to do by the intervener (the Equality and Human Rights Commission). Had it done so, the Court would “commit precisely the same error of which the lower courts stand accused”, as on the Claimant’s case “an approach which takes into account the circumstances of a particular case is erroneous” (§ 3). Moreover, the Court also noted that the intervener’s proposition would have been at odds with its procedural rules and caused unfairness to the Secretary of State, who had prepared to address the two questions of law as set out above.
Gabrielle Dunn will begin the Bar Training Course in Autumn 2021
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