Share it

On appeal from: [2019] EWCA Civ 9

The Supreme Court has unanimously dismissed this appeal concerning the Appellant’s treatment in Feltham Young Offenders’ Institution and Article 3 of the European Convention on Human Rights.

The Appellant, AB, was held in Feltham Young Offenders’ Institution when he was 15 years old. During this period, there were various breaches of the Young Offender Institution Rules 2000 relating to AB’s removal from association from other inmates and the provision of education to AB, who was of compulsory school age.

AB brought judicial review proceedings before the High Court, alleging (i) that his treatment at the institution between 10 December 2016 and 2 February 2017 amounted to inhuman or degrading treatment, contrary to Article 3 of the European Convention on Human Rights; and (ii) that his removal from association with other inmates during this period breached his right to respect for his private life under Article 8 of the European Convention on Human Rights. The High Court dismissed his claim under Article 3 but allowed his claim in part under Article 8. The Court of Appeal dismissed AB’s appeal. AB then appealed to the Supreme Court, having been granted permission to appeal on the Article 3 issue.

In the Supreme Court, AB made two arguments. First, that the solitary confinement of any person under 18 automatically violates article 3 of the Convention; or, alternatively, that such treatment can only be regarded as compatible with article 3 of the Convention if there are exceptional circumstances which render the treatment strictly necessary.

HELD: Appeal unanimously dismissed.

When questions arise in connection with Convention rights, section 2(1) of the Human Rights Act requires domestic courts to take into account relevant judgments and decisions of the European Court of Human Rights (“the European Court”). Where there is a clear and consistent line of relevant case law of the European Court, the domestic courts should follow it unless there are exceptional circumstances which justify a different approach. That does not mean, however, that the domestic courts can or should substantially develop the European Court’s case law. Parliament’s purpose in enacting the Human Rights Act was to ensure that there is correspondence between the rights enforced domestically and those available before the European Court, not to provide for rights which are more generous than those available before the European Court.

On that basis, in determining this appeal, the Supreme Court’s starting point is the existing case law of the European Court. From that case law, a consistent approach to the application of article 3 of the Convention can be discerned. In cases concerned with allegations of ill-treatment – including those concerned with the solitary confinement of adult prisoners and with the ill-treatment of detained children and young people – the European Court asks itself whether the ill-treatment has attained the minimum level of severity which is necessary for article 3 to apply. The minimum level is not fixed, but depends on “all the circumstances of the case”. A range of matters are relevant, including the age of the applicant and the duration, purpose and effect of the treatment.

The European Court has not adopted any bright line rule that the solitary confinement of a person under 18 is automatically a violation of article 3 of the ECHR. It is not open to the Supreme Court to depart from the European Court’s case law by creating such a rule itself. Contrary to the argument made on behalf of AB, a different approach is not required or justified in the light of certain General Comments issued by the UN Committee on the Rights of the Child, which state that the solitary confinement of persons under 18 should be prohibited in all circumstances. Those Comments are not binding even in respect of the meaning of the UN Convention on the Rights of the Child, and would not be treated by the European Court as determinative of the question of whether any particular provision of the Convention has been breached.

The European Court has also not adopted any rule that the solitary confinement of a person under 18 will be compatible with article 3 of the Convention only if there are “exceptional circumstances” which make such treatment “strictly necessary”. The European Court might adopt a “strict necessity” test in this context in the future, but it has not done so yet. It is not the function of the Supreme Court to anticipate such a significant development in the application of the Convention.

The Supreme Court accordingly rejects both legal arguments made on behalf of AB. The Court decides that it would not be appropriate to go on to consider whether, in all the circumstances of the case, the treatment of AB was compatible with article 3 of the Convention, as the Equality and Human Rights Commission invited the Court to do. To do so would be to commit the very error that AB accuses the lower courts of falling into. It would also be unfair to the Secretary of State, and would undermine the Court’s procedural rules, if the Court were to determine the appeal otherwise than on the basis of the two narrow arguments made on behalf of AB.

For judgment, please see:

For press summary, please see:

For non-PDF version of the judgment, please see:

Watch hearing
20 Jan 2021 Morning session Afternoon session
21 Jan 2021 Morning session