4 Jul 2017
High Court declares a child’s isolation and lack of education at Feltham prison unlawful
A boy who was isolated in his cell for months on end and provided with only very limited access to education in a London prison was treated unlawfully, the High Court ruled today (Tuesday 4 July).
The boy, who spent more than 100 days isolated from his peers and was deprived of adequate education, is represented by the legal team of the Howard League for Penal Reform. The Equality and Human Rights Commission intervened in the case.
The child, identified in court documents as AB, was locked in his cell for over 22 hours a day for more than 15 days at a stretch.
The court accepted that during the worst periods, when he had no educational provision at all, “the lack of mental and physical activity contributed to his frustration and so to his disruptive behaviour”.
Frances Crook, Chief Executive of the Howard League for Penal Reform, said: “This is an important judgment. The court has declared this boy’s isolation for certain periods and the denial of adequate education unlawful because it was against prison rules.
“It is disappointing that the court stopped short of accepting that keeping AB in isolation for over 22 hours a day was degrading and inhuman treatment. We will be seeking to appeal this part of the ruling.”
AB’s isolation was declared unlawful by the court for a total of 127 days because the prison failed to comply with its own rules around the removal of children from the usual regime in prison.
These rules, known as the Young Offender Institution Rules 2000, impose a range of safeguards and procedures to be put in place in light of the risks associated with isolation.
The same rules require that children in prison get at least 15 hours of education a week: AB had no education at all for the first 55 days at Feltham, and only 15 hours in total in a two-month period before the hearing. The court declared the failure to provide AB education unlawful. The court received evidence from the Youth Justice Board that the shortfall in educational provision in Feltham was due to the risks the children posed to others or which others posed to them and staff shortages.
Even so, the court found that the rules do not permit education to be reduced below 15 hours a week for those reasons.
The judgment was handed down only four days after Feltham was strongly criticised by Her Majesty’s Inspectorate of Prisons
In giving judgment, Mr Justice Ouseley said: “It has not been possible to provide [education] because not enough thought, effort and resources have been put into it. I understand how doing so removes resources from elsewhere for someone who may not be thought deserving of so much attention. But that is not what the Rule permits, and there are obvious reasons why those who are troublesome in the way AB is and for the reasons he is, cannot be left merely to drift in their education, as if they were responsible adults making adult choices. He is in his GCSE year and has special educational needs.”
The judgment was handed down only four days after Feltham was strongly criticised by Her Majesty’s Inspectorate of Prisons, following an inspection that was conducted in January and February.
In its report on ‘Feltham A’, the part of the prison that holds boys aged 18 and under, the inspectorate reported that violence had escalated.
Her Majesty’s Chief Inspector of Prisons, Peter Clarke, wrote: “The focus on keeping people apart rather than trying to change their behaviour has not worked. Feltham A is, quite simply, not safe for either staff or boys.”
Inspectors found that the regime did little or nothing to contribute to the boys’ education or safety. Forty per cent of the boys were locked up during the school day and 30 per cent were out of their cells for only two hours a day. Boys, like AB, on the most restricted regime could have as little as 30 minutes a day out of their cells for showers, phone calls and time outside. All children had every single meal alone, locked in their cells.
The UK is out of step with a growing international consensus that children should never be placed in solitary confinement
Feltham had enough school places and teachers, inspectors found, but fewer than half of the boys were getting to lessons – 19,000 hours of schooling had been lost in the past year due to non-attendance and cancellation of classes. On average boys were receiving just half of the 15 hours required each week. The education outreach provision did not meet the needs of children who did not attend classes.
Some boys were given as little as 10 minutes in the open air each day. Inspectors were concerned that the “lack of sunlight and exercise must carry implications for the health and well-being of teenage boys”.
The UK is out of step with a growing international consensus that children should never be placed in solitary confinement.
In the US, the District Court for New York granted an injunction requiring the immediate cessation of 23-hour solitary confinement of children. The court referred to expert evidence that “solitary confinement perpetuates, worsens, or even in some cases precipitates mental health concerns that can lead to long-term and often permanent changes in adolescent brain development”.
In April, a report by the European Committee for the Prevention of Torture stated how children in Cookham Wood prison, in Kent, were “regularly held in conditions akin to solitary confinement for periods of 30 days and some for as long as 60 days or even, on occasion, up to 80 days for reasons of discipline and good order”.
In a ruling delivered in 2015, the Supreme Court held that there are “well known” risks of solitary confinement and that prolonged solitary confinement – defined as being held in solitary confinement for longer than 15 days – is particularly harmful.
The Supreme Court cited expert evidence that the prolonged solitary confinement of adults can have an “extremely damaging effect on … mental, somatic and social health” and “some of the harmful psychological effects of isolation can become irreversible”.
The National Preventive Mechanism, an independent body which monitors the treatment of prisoners, has highlighted a “worrying number of instances where isolation was not subject to formal governance”.
The widespread use of solitary confinement of children in prisons in England was exposed in 2015 in a report by the Children’s Commissioner. It found that one-third of children in prison will spend time in isolation and that the practice is used disproportionately in respect of children from looked after and ethnic minority backgrounds.
The legal case for AB argued that his treatment is in breach of the United Nations’ Mandela Rules, which prohibit the use of solitary confinement for children.
Notes to editors
- The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
- The judgment can be read in full online.
- AB is represented by Laura Janes, Legal Director at the Howard League for Penal Reform, and Dan Squires QC of Matrix Chambers. An order is in place protecting the anonymity of AB in accordance with rule 39(4) of the Civil Procedure Rules, including a prohibition on publication of details that may lead to his identification.
- Reports from the most recent inspection of Feltham prison can be found on the HM Inspectorate of Prisons website.
- The Council of Europe’s Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment can be read online.
- HM Chief Inspector of Prisons for England and Wales Annual Report 2014-15, which raised concerns about solitary confinement in Feltham prison, can be read online.
- Monitoring Places of Detention: The Sixth Annual Report of the United Kingdom’s National Preventive Mechanism can be read online.
- Isolation and Solitary Confinement of Children in the Youth Justice Secure Estate, a report published by the Office of the Children’s Commissioner in 2015, can be read online.
- The judgment in the Supreme Court case of R (on the application of Bourgass and another) v Secretary of State for Justice, which considered the risks of solitary confinement, can be read online.
- In February 2017, in the case of VW and others v Eugene Conway, the District Court for New York granted an injunction requiring the immediate cessation of 23-hour solitary confinement of children.
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