AB (A Child), R (On the Application Of) v The Secretary of State for Justice

Whether removal from association breaches Article 3 ECHR depends on the whole factual context. There is no automatic rule that a young person’s detention becomes inhuman or degrading treatment after 15 days of so-called prolonged solitary confinement. Relevant factors include the conditions and duration of isolation, its purpose and justification, the individual’s age and health, the extent and quality of human contact, education and activity, procedural safeguards, monitoring, and its actual or established effects.

Statutory and procedural breaches do not necessarily establish an Article 3 violation. However, the Young Offender Institution Rules require at least 15 hours’ education weekly for an inmate of compulsory school age, subject only to limited and temporary adjustment for genuine operational exigencies. A declaration, rather than a general mandatory injunction, was the appropriate remedy.

AB, a 15-year-old detained in Feltham Young Offender Institution under a 12-month Detention and Training Order, was kept on single unlock and removed from association for much of his detention. The regime was initially justified by serious violence towards staff and later also by risks to AB from other young people.

The Secretary of State accepted that the procedural requirements governing removal from association had been breached, and that AB had not received the education required by the Young Offender Institution Rules. Article 8 breaches were also conceded in part. The principal contested issue was whether the regime breached Article 3 ECHR because it amounted to prolonged solitary confinement. The court also considered the appropriate remedy for the admitted breaches.

1. Article 3. The claim that more than 15 days of prolonged solitary confinement automatically breaches Article 3 was rejected. Article 3 requires an intensely fact-sensitive assessment of whether the treatment reached the minimum level of severity. Non-judicial definitions of solitary confinement and prolonged solitary confinement cannot replace that assessment.
2. The court considered the purpose, duration, conditions and effects of the regime, AB’s age and mental-health vulnerabilities, the extent of activity and social contact, medical monitoring, and the procedural safeguards. Removal from association was justified by the need to protect staff and AB, and repeated attempts at reintegration had been frustrated by his behaviour. He received medical care, psychological support, contact with staff and lawyers, some exercise, television and later education. The evidence did not establish actual deterioration or a sufficiently established serious risk of latent harm. Article 3 was therefore not breached.
3. International materials concerning children and solitary confinement were relevant, at most, as interpretative or evidential material. They did not establish an automatic Article 3 rule, and the court declined to treat the views of non-judicial bodies as determinative of whether the ECHR had been breached.
4. Education. Rule 38(2) required at least 15 hours’ education weekly for an inmate of compulsory school age. Risk-management difficulties could justify limited, temporary adjustment, but the obligation could not be avoided because insufficient thought, effort or resources had been devoted to making suitable provision. The YOI had breached the rule.
5. Remedy and Article 8. The court declined a mandatory injunction because the proposed order was insufficiently precise and could create contempt proceedings about disputed issues such as private study and refusal to co-operate. Declarations were sufficient. Article 8 was breached because the interference caused by removal from association was not in accordance with law during the periods when Rule 49 and the applicable guidance were not followed.

First-instance judicial review in the Administrative Court. The judgment itself records no earlier appellate decision.