BP, R (on the application of) v Secretary of State for the Home Department

A young offender may be removed from a living unit as a disciplinary punishment, but may not thereby be deprived of education, training, work, physical education or the minimum regime activities required by the applicable rules and orders.

Removal from the unit is not itself unlawful, and segregation is not automatically contrary to Articles 3 or 8. Article 3 requires treatment of a minimum level of severity. Article 8 requires a sufficiently serious adverse effect on physical or psychological integrity, assessed in context. Young offenders’ vulnerability and best interests must inform the institution’s approach.

The claimant, who was under 18 when relevant, challenged two periods of removal from his unit at a young offender institution. He alleged breaches of the Young Offender Institution Rules 2000, prison service orders, Articles 3 and 8 of the Convention, and a failure to investigate allegations of rape at another institution.

The court found that education, training, physical education and other minimum regime activities had been withheld during the disciplinary removals. It also considered whether the conditions breached Articles 3 or 8 and whether the child-protection response was unlawful.

1. Rules and regime. Rule 60 permitted removal from a young offender’s wing or living unit, but did not permit confinement of a young offender of the claimant’s age. Rule 60 and the related provisions also prohibited deprivation of education, training, work and physical education. Rule 62 did not authorise restrictions inconsistent with those protections.
2. The claimant’s deprivation of education, training and physical education, together with the failure to provide the required minimum regime activities, breached the Young Offender Institution Rules 2000, the relevant prison orders and the Prison Discipline Manual. The institution also failed to have regard to the claimant’s best interests and inherent vulnerability, consistently with the principles identified in R (Howard League for Penal Reform) v Secretary of State for the Home Department [2002] EWHC 2497 (Admin).
3. Removal from the unit was not, by itself, unlawful. Had proper education, training and physical education been provided, there would have been no breach. The claimant’s medical condition did not prevent punishment, and the evidence did not establish a breach of the segregation guidance concerning self-harm.
4. Article 3. The conditions did not reach the minimum level of severity required for inhuman or degrading treatment. The court accepted that solitary confinement of a child might breach Article 3 in circumstances which would not do so for an adult, but the facilities, duration, purpose and level of contact in this case precluded such a finding.
5. Article 8. The evidence did not establish a sufficiently serious violation of the claimant’s physical or psychological integrity. The court declined to define generally when removal from a young offender institution would breach Article 8, while warning of the dangers of placing young people in segregation.
6. The rape-investigation complaint was advanced too late and was unsupported by the evidence. The institution had applied the child-protection procedures meticulously, including involving the police and social services under section 47 of the Childrens Act 1989. The issue should not have been pursued.
7. The application was allowed to the extent of the findings of breaches, but no relief was granted because the regime had been reviewed and changed. There was no order as to costs.

First-instance judicial review in the Administrative Court. No prior decision is stated in the judgment.