R v Secretary of State for Justice

Removal from association or solitary confinement of a detainee under 18 does not automatically violate article 3 of the European Convention on Human Rights, even where it is prolonged. Compatibility depends on whether the minimum level of severity is reached after assessing all the circumstances. Age, vulnerability, duration, conditions, purpose, justification and physical or mental effects are relevant.

Article 3 does not impose a universal rule that such confinement is lawful only in exceptional circumstances where strictly necessary. Domestic courts may incrementally apply established Strasbourg principles to new situations, but cannot create a substantial new principle of Convention law from other international materials.

The anonymised appellant was detained at Feltham Young Offenders’ Institution when aged 15. Between December 2016 and February 2017 he was subject to a single-unlock regime, principally to protect officers, other detainees and the appellant himself. He spent most of each day in his cell and had limited social contact.

At first instance, Ouseley J found breaches of the Young Offender Institution Rules 2000 concerning removal from association and education, and an unchallenged breach of article 8. He rejected the article 3 claim: [2017] EWHC 1694 (Admin). The Court of Appeal dismissed the appeal, holding that article 3 required a fact-sensitive assessment: [2019] EWCA Civ 9.

The Supreme Court considered only whether solitary confinement of a person under 18 is inherently contrary to article 3, or alternatively is necessarily unlawful unless exceptional circumstances make it strictly necessary. No wider challenge to the fact-specific conclusion was pursued.

1. Disposition. Lord Reed, with whom Lord Lloyd-Jones, Lord Sales, Lord Hamblen and Lord Stephens agreed, dismissed the appeal. Neither of the appellant’s proposed rules formed part of article 3 as interpreted in the existing Strasbourg jurisprudence.

2. Ill-treatment engages article 3 only if it attains a minimum level of severity. That threshold is relative and must ordinarily be assessed by considering all the circumstances. Relevant matters include the person’s age and health, the treatment’s duration and stringency, its purpose and justification, its physical and mental effects, and whether it caused suffering beyond that inherent in detention. The vulnerability and needs of children require appropriate weight, but do not replace the fact-sensitive assessment.

3. Removal from association does not itself constitute inhuman or degrading treatment. Strasbourg has neither prescribed a definition of solitary confinement nor fixed a period after which it necessarily violates article 3. The expression also has no defined meaning in English law or universally agreed meaning in international law. A legal rule based solely on a definition and duration would improperly substitute a mechanical rule for the required assessment.

4. Under section 2(1) of the Human Rights Act 1998, domestic courts must take relevant Strasbourg decisions into account. Applying R (Ullah) v Special Adjudicator [2004] UKHL 26, they should generally keep pace with clear and constant Strasbourg jurisprudence. They may anticipate how established principles would apply to a new situation and make incremental developments. They cannot establish a substantially new principle of Convention law by substituting standards derived from other international instruments.

5. In observations which were not necessary to the result, Lord Reed explained that comments and recommendations of United Nations treaty bodies are not binding judicial interpretations. In particular, the Committee on the Rights of the Child cannot bind domestic courts on the meaning of either the United Nations Convention on the Rights of the Child or the ECHR. Such materials may influence adjudication, but their expertise does not make them legally authoritative.

6. A strict-necessity rule has been applied under article 3 to physical force against detained persons because unjustified force inherently diminishes human dignity. Strasbourg has not applied that rule to solitary confinement. Solitary confinement, particularly of a child, should be exceptional and genuinely necessary. Nevertheless, an absence of exceptional circumstances or strict necessity does not by itself establish an article 3 violation. The suggested analogy with physical force was rejected.

1. United Kingdom Supreme Court: The Court unanimously dismissed the appeal and left standing the Court of Appeal’s fact-sensitive approach to article 3: [2021] UKSC 28.
2. Court of Appeal: The court dismissed the appeal. It held that article 3 required a highly fact-sensitive inquiry and created no bright-line rule or presumption for solitary confinement of children: [2019] EWCA Civ 9.
3. High Court, Administrative Court: Ouseley J found breaches of the Young Offender Institution Rules 2000 and article 8, but held that the appellant’s treatment did not attain the severity required for an article 3 violation: [2017] EWHC 1694 (Admin).