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

Whether a child’s removal from association amounts to inhuman or degrading treatment under article 3 depends on a fact-sensitive assessment of all the circumstances. There is no bright-line rule or presumption based on confinement for more than 22 hours daily or for more than 15 days. The child’s age is material, but so are the regime’s purpose, conditions, duration, social contact, safeguards and effects.

Removal from association may interfere with private life under article 8. It must therefore satisfy article 8(2). A protective regime may be necessary and proportionate for the safety of the child, staff and other detainees. Procedural breaches of prison rules do not necessarily establish a substantive breach of either article, although they may mean that the interference was not in accordance with law.

AB, a 15-year-old detained in Feltham Young Offenders’ Institution, was kept on a single-unlock regime for 55 days between December 2016 and February 2017. He could not associate with other detainees and received inadequate education. The Secretary of State accepted breaches of the procedural and education requirements of the Young Offender Institution Rules 2000.

Ouseley J dismissed AB’s article 3 claim but held that article 8 was engaged and declared that the interference was not in accordance with law: [2017] EWHC 1694 (Admin). AB appealed the dismissal of his substantive Convention claims. The Secretary of State cross-appealed against the finding that article 8 was engaged.

The central issues were whether the regime breached articles 3 or 8 of the European Convention on Human Rights, and whether a child’s solitary confinement is inherently, or presumptively, contrary to article 3.

1. Appeal and cross-appeal dismissed. The court upheld the dismissal of AB’s article 3 claim and the declaration that the article 8 interference was not in accordance with law.

2. Article 3 requires a close assessment of the particular conditions, their stringency and duration, their objective, and their effects on the detainee. The fact that the detainee is a child is important, but it does not produce a rule that confinement for more than 22 hours a day, or for more than 15 days, automatically or presumptively breaches article 3. The court applied the fact-sensitive approach reflected in (2013) EHRR 1 and [2016] EWHC 1219 (Admin).

3. The international materials relied on by AB did not alter that conclusion. They were recommendations for future action, and several concerned solitary confinement imposed as punishment or discipline. They did not establish a present rule of Convention law applicable to a protective removal from association.

4. On the facts, the high article 3 threshold was not crossed. AB was not left wholly isolated. He had contact with staff, welfare and health professionals, support workers and solicitors, and had some activities outside his cell. The regime developed in response to risks arising from his conduct and threats from other detainees. Its essential purposes were AB’s safety and the safety of staff and other detainees. The admitted failures in education and procedural oversight were serious concerns but did not themselves establish a breach of article 3.

5. The availability of reasonable resources may be relevant where a positive obligation is relied upon. Resources cannot justify conduct which otherwise breaches article 3, but they may properly inform what steps can reasonably be taken in a protective detention regime.

6. Removal from association can, in principle, interfere with private life under article 8. It clearly did so here. The interference was nevertheless necessary and proportionate for the protective aims identified. It would have been lawful but for the conceded failures to comply with the applicable rules, which meant that it was not in accordance with law.

• Court of Appeal (Civil Division): dismissed AB’s appeal and the Secretary of State’s cross-appeal: [2019] EWCA Civ 9.
• High Court, Administrative Court: held that there were breaches of the Young Offender Institution Rules 2000, dismissed the article 3 claim, and declared that the article 8 interference was not in accordance with law: [2017] EWHC 1694 (Admin).