Children and young persons: Detention

The appellant had been sent to a young offenders' institution when he was 15 years old, where he had been placed in 'single unlock', meaning he could not leave his cell when any other detainees were out of their cells. He failed in his appeal against the decision of the Court of Appeal, Civil Division, that that his removal from association had not been in breach of the prohibition of torture under art 3a and the right to respect for private and family life under art 8b of the European Conventionon Human Rights. The Supreme Court held, among other things, that the authorities referred to demonstrated a consistent approach to the application of art 3. In cases concerned with allegations of ill-treatment, the court asked itself whether the ill-treatment had attained the minimum level of severity which was necessary for art 3 to apply. That minimum level was not fixed, but depended on the circumstances of the case. In the present case, as the Court of Appeal had decided, the appellant had not crossed that high threshhold.

The claimant was sent to a young offenders' institution (YOI) when he was 15 years old. On arrival, he was immediately placed in 'single unlock', meaning 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 room. He brought proceedings for judicial review contending, among other things, that his removal from association was in breach of the prohibition of torture under art 3a and the right to respect for private and family life under art 8b of the European Convention for the Protection of Human Rights (as set out in Sch 1 to the Human Rights Act 1998 (HRA 1998)). Rule 49c of the Young Offender Institution Rules 2000, SI 2000/3371, regulated 'removal from association' of young offenders, where 'desirable, for the maintenance of good order or discipline or in his own interests'. As appeared from r 49(1), removal from association was concerned only with limiting contact between detainees. It was not concerned with the time that a detainee was permitted out of his cell or his contact with teachers, psychologists, the staff of the institution or other persons. It could be used for disciplinary purposes or in the detainee’s own interests and those of other persons. Rule 49(1) did not disapply the rules requiring detainees to participate in educational activities and physical education.

The judge had made a number of findings in the appellant's favour. First, he found that the respondent Secretary of State had failed to comply with the requirements of r 49 of the Rules pertaining to procedural oversight of the appellant’s removal from association: the process for such removal and the further process of regular reviews of that decision had not taken place in breach of the Rules. That was acknowledged by the Secretary of State and an apology was made for it. Second, the Secretary of State had failed to comply with rr 3(1), 37(1), 38 and 41 of the Rules, pertaining to the appellant’s education. In particular, he held that there had been breaches of the provisions in the Rules relating to compulsory education for a detainee such as the appellant, who had been of compulsory school age at the time. In the light of those findings, he held that art 8 was engaged and it had been breached, but only in respect of the requirement that any interference with art 8 rights had to be in accordance with law. However, the judge rejected the submission that the appellant’s treatment between 10 December 2016 and 2 February 2017 had been sufficiently severe in all the circumstances of the case to cross the high threshold which was required before treatment could be regarded as being inhuman or degrading, in violation of art 3 of the Convention.

The appellant appealed and the Secretary of State cross-appealed. The Equality and Human Rights Commission intervened in the appeal. The Court of Appeal, Civil Division, dismissed the appellant's appeal. It held that art 3, as interpreted to date, called for a highly fact-sensitive into all the circumstances of a case such as that, in order to see whether the high threshold contained in it had been crossed. Applying the jurisprudence on art 3 to the facts of the case, the Court of Appeal concluded that although it had concerns, among other things, that there had been breaches of various Rules, those considerations did not lead it to conclude that there had been a breach of art 3.

The appellant appealed.

(1) Whether the solitary confinement of persons under 18 years of age was automatically a breach of art 3 of the Convention.

If accepted, the appellant's argument in support of the contention that holding persons aged under 18 in solitary confinement (as the appellant defined it) was inherently a violation of art 3, had the consequence that the test for determining whether there had been a breach of art 3 was based, first, on the adoption of a particular definition of 'solitary confinement' or 'prolonged solitary confinement', and second, on the duration of the period during which that definition had been satisfied. Instead of the court carrying out an evaluation of all the relevant circumstances, including such matters as the reasons for the person’s isolation, the degree of social contact which he or she might have had with other people, the conditions under which he or she had been kept, and the effect of the isolation upon his or her health, there was substituted an essentially mechanical test. That argument was not based on the judgments of the European Court of Human Rights (the ECHR) concerning art 3. It depended on the jurisprudence of the ECHR solely in order to establish the relevance of the United Nations Convention on the Rights of the Child (the UNCRC), and of other international instruments, to the interpretation of art 3. The rest of the argument depended on the UNCRC and the other international instruments by a variety of international bodies, and assumed that a corresponding interpretation should be given to art 3.

'Solitary confinement' was not an expression with a defined meaning in English law. Nor did it have any universally agreed definition in international law. It had been used by the ECHR in cases covering a variety of circumstances, but had not been defined. In the ECHR's case law concerning art 3 of the Convention, as in domestic cases applying HRA 1998, the court had carried out an evaluation of the circumstances of the individual case, rather than asking whether the treatment of the applicant had satisfied a particular definition and, if so, basing its decision on whether the period of time during which the definition had been satisfied had been in excess of a specified maximum (see [32] of the judgment).

The authorities referred to demonstrated a consistent approach to the application of art 3. In cases concerned with allegations of ill-treatment, the court asked itself whether the ill-treatment had attained the minimum level of severity which was necessary for art 3 to apply. That minimum level was not fixed, but depended on the circumstances of the case. A range of matters ware relevant, including the age of the applicant and the duration of the treatment, but they were by no means confined to those factors. Judgments concerned with solitary confinement had provided lists of factors which the court had found to be relevant. All of the elements in question depended closely upon the facts of the particular case (see [50] of the judgment).

In relation to removal from association, in particular, the court had repeatedly stated that such removal did not in itself amount to inhuman treatment, and that a range of considerations had to be taken into account. They included the stringency of the measure and its duration, but the court had not laid down a definition of a particular level of stringency (short of complete sensory isolation coupled with total social isolation), or a particular duration, which was sufficient in itself to violate art 3. The court had never laid down precise rules governing the operation of solitary confinement, and in particular had never specified a period of time beyond which solitary confinement would attain the minimum level of severity required for art 3 (see [51], [53] of the judgment)

There did not appear to have been cases under art 3 concerned with the removal from association of detained offenders under 18 years of age; and the detention of persons under 18 raised different issues from the imprisonment of adults, essentially because of the vulnerability and needs of persons in that age group. However, there was a body of case law under art 3 concerned with the treatment of children and young people in a range of other contexts concerned with detention and criminal proceedings. Those cases did not suggest that a radically different methodology should be adopted. On the contrary, the court had followed the general approach as discussed, focusing on matters such as the duration of the treatment, its physical and mental effects, and the age and state of health of the person concerned, while giving appropriate weight to the vulnerability and needs of children and young people. The existing case law supported the general approach adopted by the courts below, summarised by the Court of Appeal. The approach proposed by the appellant would be a major departure from the principles currently laid down in the Convention (see [52], [53] of the judgment).

It followed from the authorities that it was not the function of the UK's domestic courts to establish new principles of Convention law. However, that was not to say that they were unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. In situations which had not yet come before the ECHR, they could and should aim to anticipate, where possible, how the ECHR might be expected to decide the case, on the basis of the principles established in its case law. Indeed, that was the exercise which the High Court and the Court of Appeal had undertaken in the present case. The application of the Convention by the domestic courts, in such circumstances, would be based on the principles established by the ECHR, even if some incremental development might be involved. The appellant was not inviting the court to decide the appeal on the basis of principles established in the ECHR's case law but on the basis of a principle which he claimed ought to be adopted in the light of a body of material concerned with other international instruments. That approach was not open to the court under HRA 1998, and his argument would therefore be rejected

(see [59] of the judgment).

Further, it was well understood that the ECHR took account of other international treaties and other materials in its interpretation and application of the Convention. However, 'it is for the [European] court to decide which international instruments and reports it considers relevant and how much weight to attribute to them'. Accordingly, although the ECHR frequently referred to international treaties, it did not necessarily follow the views adopted by the bodies established to interpret them. That approach was also evident in the ECHR's case law concerning art 3. Further, even where an international instrument was relevant to the ECHR's consideration of whether there had been a violation of the Convention, it could not be assumed that the relevant article of the Convention was art 3, rather than some other article, such as art 8., Furthermore, it was unfortunate that the General Comments of the Convention on the Rights of the Child (the CRC) had been described in some dicta in the Supreme Court as 'authoritative'. In context, all that appeared to have been meant was that the comments had been issued by a body possessing relevant experience and expertise. That description had however been misread, so as to result in exaggerated claims as to the comments’ status and effect, and was best avoided. Contrary to the tenor of the submissions in the present and other cases, the CRC did not make binding decisions as to the interpretation of the UNCRC: it had no power to do so. Nor, of course, did it make binding decisions as to the interpretation of the Convention (see [61]-[64] of the judgment).

R (on the application of Bourgass) v Secretary of State for Justice [2015] UKSC 54 considered; Shahid v Scottish Ministers [2015] UKSC 58 considered; Ramirez Sanchez v France (Application No 59450/00) 43 EHRR 1161 considered; Ahmad v United Kingdom (App. Nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09) [2012] Lexis Citation 30 considered; Van der Ven v Netherlands (Application No 50901/99) 38 EHRR 967 considered; Ireland v United Kingdom (Application 5310/71) 2 EHRR 25 considered; Ilascu v Moldova and Russia (Application 48787/99) 40 EHRR 1030 considered; V v United Kingdom (Application 24888/94) 30 EHRR 121 considered; White v Sweden (Application no 42435/02) 46 EHRR 23 considered; Guvec v Turkey (App no 70337/01) [2009] ECHR 70337/01 considered; Smith v Ministry of Defence; Ellis v Ministry of Defence; Allbutt v Ministry of Defence [2013] UKSC 41 followed; R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department [2004] UKHL 26 followed; Manchester City Council v Pinnock [2010] UKSC 45 followed; R (on the application of Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15 followed; R (on the application of Al-Skeini) v Secretary of State for Defence [2007] UKHL 26 followed; R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15 followed; R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home Department [2004] UKHL 26 followed; Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 considered; Surrey County Council v P (Equality and Human Rights Commission intervening) [2014] UKSC 19 considered; Kennedy v Charity Commission [2014] UKSC 20 considered; Moohan v Lord Advocate [2014] UKSC 67 considered; Mursic v Croatia (Application 7334/13) 65 EHRR 1 considered; Aggerholm v Denmark (App. No. 45439/18) [2020] ECHR 45439/18 considered; Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening); Mitchell v Al-Dali [2006] UKHL 26 considered; R (on the application of A and another) v Secretary of State for Health [2017] UKSC 41 considered; R (on the application of DA and others) v Secretary of State for Works and Pensions; R (on the application of DS and others) v Secretary of State for Work and Pensions [2019] UKSC 21 considered.

(2) Whether there was a single and universal test of the compatibility of the solitary confinement, as so defined, of persons under 18 years of age with art 3, namely that there existed 'exceptional' circumstances in which treatment was 'strictly necessary'.

A test of 'strict necessity' had been applied in relation to art in a line of cases concerned with the use of physical force against persons in detention. That was the line of authority on which the appellant relied, on the basis that the same appraoch should also be applied, by analogy, to the solitary confinement of persons aged under 18.

There was no doubt that solitary confinement should be ordered only exceptionally. That was well established in the ECHR case law. That should be especially clear in relation to detainees under 18 years of age. Equally, it could hardly be doubted that solitary confinement should be used only when genuinely necessary, especially in the case of persons under 18. The point of the argument was not to establish those propositions. The point of the argument was that, if solitary confinement was used in the absence of exceptional circumstances rendering it strictly necessary, it was (if the argument was accepted) inevitably a violation of art 3, for that reason alone, and regardless of all other circumstances (see [73] of the judgment).

There was no support in the case law for the application of a strict necessity test in relation to solitary confinement. It was plain that no such test had been applied to the solitary confinement of detainees over 18. Nor was there anything in the case law to suggest that such a test would be applied to the solitary confinement of detainees under 18. The line of authority in which a test of strict necessity had been applied to the treatment of detainees had been concerned solely with the use of physical force. The test of strict necessity reflected the specific characteristics of the use of force in that context: the powerlessness and vulnerability of individuals who were at the mercy of persons placed in positions of power by the state, and the humiliation which they inevitably suffered, not least in their own eyes, if they were the victims of assaults under those circumstances. It was entirely understandable that the court should have regarded the use of physical force under those circumstances as inherently degrading, unless it was strictly necessary. There did not appear to be any analogy between that situation and the removal of a detainee, whether over or under 18, from association with other detainees (see [74], [75] of the judgment).

Bouyid v Belgium (App. No. 23380/09) 62 EHRR 1045 considered.

Decision of Court of Appeal, Civil Division [2019] EWCA Civ 9;  Affirmed.

Dan Squires QC and Ayesha Christie  (instructed by The Howard League for Penal Reform) for the appellant.

Sir James Eadie QC, Tom Weisselberg QC, Sarah Hannett and Jason Pobjoy (instructed by The Government Legal Department) for the respondent.

Intervener (Equality and Human Rights Commission)

Caoilfhionn Gallagher QC and Adam Wagner (instructed by Equality and Human Rights Commission) for the Equality and Human Rights Commission as intervener.

Neneh Munu -  Barrister.