R (AB) v Secretary of State for Justice

The Supreme Court considered two legal questions: whether the solitary confinement of persons under 18 is inherently inhuman or degrading for the purposes of article 3 ECHR, and whether, if not, a single universal test of compatibility requires that such solitary confinement be justified only in "exceptional" circumstances as being "strictly necessary". The court rejected both contentions. It held that article 3 assessments remain fact-sensitive and must take into account the full circumstances of each case, including purpose, duration, stringency and effects, and that domestic courts should follow and keep pace with Strasbourg jurisprudence rather than create new automatic rules. The court also rejected the submission that a strict necessity test of the kind applied to use of force should be extended to solitary confinement of children.

This was an appeal concerning the lawfulness under article 3 ECHR of the appellant's removal from association while detained at Feltham Young Offenders' Institution between 10 December 2016 and 2 February 2017, when he was 15. The appellant did not challenge the factual findings of the courts below but advanced two pure questions of law: (i) whether "solitary confinement" of persons under 18 (as defined by the appellant) is automatically inhuman and degrading; and (ii) alternatively, whether such solitary confinement is compatible with article 3 only in "exceptional" circumstances where it is "strictly necessary".

The case proceeded to this court on appeal from the Court of Appeal ([2019] EWCA Civ 9), which had in turn reviewed findings of Ouseley J at first instance ([2017] EWHC 1694 (Admin)). The factual background, accepted by all courts, involved a young offender with a history of violent and sexual offending who was managed on a single-unlock / removal-from-association regime at Feltham for reasons of his own and others' safety; breaches of the Young Offender Institution Rules concerning education and procedural oversight were found at first instance and accepted by the Secretary of State.

The issues framed by the Court were (i) whether article 3 is violated as a matter of law by solitary confinement of under-18s and (ii) whether a "strict necessity" test applies. The Supreme Court reviewed Strasbourg authority (including Ramirez-Sanchez, Ahmad and related decisions) and domestic authorities on the duty to follow and keep pace with European Court jurisprudence (Ullah and related House and Supreme Court authorities). It concluded that the Convention jurisprudence requires a fact-sensitive inquiry into whether the minimum level of severity required by article 3 has been attained and that the Strasbourg court has not adopted a per se rule or a single "strict necessity" test for solitary confinement of children. The court therefore dismissed the appeal, rejecting the invitation to adopt a new automatic rule based primarily on UNCRC materials or to extend the strict necessity test used for use-of-force cases to solitary confinement.

The court emphasised (i) that international instruments and UN treaty bodies may be persuasive but are not binding on interpretation of the ECHR, (ii) that General Comments of the CRC are not judicial rulings and do not themselves dictate ECHR interpretation, and (iii) that domestic courts should be cautious about developing Convention law beyond clear Strasbourg precedent.

Appeal dismissed. The court rejected the submissions that solitary confinement of persons under 18 is automatically inhuman or degrading or that such confinement is only permissible in "exceptional" circumstances meeting a "strict necessity" test. Article 3 requires a fact-sensitive assessment based on Strasbourg jurisprudence; domestic courts must follow and keep pace with the European Court rather than create a new automatic rule.

Appeal to the Supreme Court from the Court of Appeal ([2019] EWCA Civ 9), which had reviewed the decision of Ouseley J at first instance ([2017] EWHC 1694 (Admin)).