AB’s appeal asked whether isolating a person under 18 in custody necessarily crosses the threshold for inhuman or degrading treatment under article 3 of the European Convention. The legal question was whether the court had to apply an automatic rule or examine the conditions and effects in the particular case.
AB was under 18 and detained in a young offender institution. For a period he was generally kept apart from other detainees under a system called single unlock. His challenge concerned the conditions of that isolation and the statutory safeguards governing it.
The Young Offender Institution Rules 2000 permit removal from association where desirable for good order or discipline or in the inmate’s own interests, subject to time limits and reviews. They also require education and physical education. The High Court found that the procedural requirements for removal from association and the education rules had not been met. Those breaches meant the detention was not in accordance with the law, so article 8 was violated. That conclusion was not challenged. Both the High Court and the Court of Appeal rejected the article 3 claim. Applying a fact-sensitive approach drawn from the European case law, they found no intention to humiliate or punish, a protective purpose, medical monitoring, some social contact, and no established harm to mental health. The treatment therefore did not reach the high threshold of inhuman or degrading treatment.
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The questions on appeal
The appeal to the Supreme Court was confined to two questions of law. Counsel for the appellant did not ask the Court to reassess the facts overall. The first argument was that solitary confinement of a person under 18 — adopting a definition of physical isolation in a cell for 22 or more hours a day, and prolonged if lasting more than 15 consecutive days — is always a violation of article 3. The alternative argument was that such confinement always violates article 3 unless exceptional circumstances make it strictly necessary. The Equality and Human Rights Commission invited a wider examination of the facts, but the Court declined. The appeal had been presented on the basis that a full factual evaluation was the wrong approach, the Secretary of State had prepared only for the two legal questions, and the procedural rules require advance notice of the issues.
Why the arguments were rejected
Lord Reed, with whom the other Justices agreed, held that “solitary confinement” has no defined meaning in English law and no universally agreed definition in international law. The European Court of Human Rights has consistently required ill-treatment to attain a minimum level of severity assessed in the light of all the circumstances, including duration, physical or mental effects, age, health, purpose, stringency and conditions. Removal from association for security, disciplinary or protective reasons is not in itself inhuman or degrading. The Strasbourg court has never specified a period of time beyond which solitary confinement automatically meets the article 3 threshold, nor has it substituted a mechanical definitional test for an evaluation of the particular case. Cases concerning the detention of children have followed the same general method, giving weight to vulnerability and needs without adopting bright-line rules.
Under the Human Rights Act, domestic courts must take account of Strasbourg jurisprudence and, in the absence of special circumstances, follow its clear and constant case law. Their task is to keep pace with that jurisprudence, no more and no less. It is not their function to establish a new principle that a defined form of isolation of under-18s is automatically unlawful. Other international materials, including General Comments of the UN Committee on the Rights of the Child and reports of preventive bodies, may be considered by the European Court, but that Court decides their relevance and weight. Such comments are not binding adjudications, even of the instrument they address, and they do not determine the application of article 3.
A test of strict necessity has been applied to the use of physical force against people in detention, because force that is not required by the person’s own conduct diminishes human dignity and is in principle degrading. No equivalent test has been applied to solitary confinement. Isolation should be ordered only exceptionally and only when genuinely necessary, especially for detainees under 18, but the European case law does not treat the absence of strict necessity as conclusive of an article 3 breach regardless of every other circumstance. There is no sufficient analogy between an assault by officers on a powerless detainee and removal from association with other detainees.
Verdict: The Supreme Court unanimously dismissed the appeal. It rejected both proposed automatic tests under article 3. The appeal did not seek a fresh overall assessment of the facts. The separate, unchallenged finding of an article 8 violation remained in place.
Source: R (on the application of AB) v Secretary of State for Justice [2021] UKSC 28
