Child’s solitary confinement reviewed by the Court of Appeal

AB was routinely locked alone in his cell in Feltham prison, in west London, for 23 hours a day. This continued for 55 days, during which he received no education.  He was 15 years old at the time.

In 2017 the High Court ruled that his treatment was contrary to human rights law because the prison had not followed the correct procedures.

Today the Court of Appeal has approved that decision and clarified that when any person in prison is banned from association with others, the prison must justify that it is necessary and proportionate.

The boy, identified in court documents as AB, is represented by the legal team of the Howard League for Penal Reform.

The reason the case was considered by the Court of Appeal was because AB challenged the High Court’s decision that keeping him in isolation for more than 23 hours a day was not degrading and inhuman treatment and therefore incapable of being justified. At the same time government lawyers argued that a decision to isolate a person does not need to be justified at all in order to be compliant with human rights law.

The Court of Appeal rejected both arguments.  It agreed with the High Court that the way AB was treated for those 55 days was not inhuman and degrading or a breach of his right to personal development.  The Court of Appeal rejected the argument that being prevented from associating with other people is not governed by human rights law.  There can be no doubt now that decisions to isolate people in prison must be necessary and proportionate if they are to be lawful.

AB will now be advised on whether or not to appeal.

The judgment comes at a time of growing concern about the use of solitary confinement, with medics and children’s rights experts calling for change.

In April 2018, the British Medical Association, the Royal College of Psychiatrists and the Royal College of Paediatrics and Child Health issued a joint position statement calling for the solitary confinement of children and young people to be abolished and prohibited.

The three medical bodies said: “In light of its potential to cause harm, and in the absence of compelling evidence for its use, we call for an end to the use of solitary confinement on children and young people detained in the youth justice system.”

The Joint Committee on Human Rights has begun an inquiry into solitary confinement and restraint of children in secure settings.

A statement on the UK Parliament website, outlining the scope of the inquiry, reads: “Serious concerns have been raised about the conditions and treatment of children in detention. These include the use of restraint, which still includes techniques which involve deliberately inflicting pain, and solitary confinement, which can increase risk of self-harm and long term developmental and psychiatric problems.”

Last month, a report by the Children’s Commissioner for England, Anne Longfield, raised serious concerns about the use of segregation and isolation of children in secure penal settings.

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 2017, a report by the European Committee for the Prevention of Torture stated that 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”.

Notes to editors

1. 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.
2. AB is represented by Laura Janes, Legal Director at the Howard League for Penal Reform, and Dan Squires QC and Ayesha Christie of Matrix Chambers. An order is in place protecting the anonymity of AB in accordance with the Civil Procedure Rules, including a prohibition on publication of details that may lead to his identification.
3. In July 2017, the High Court ruled that AB’s treatment was unlawful because it was against prison rules. The court’s judgment can be read in full online at: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1694.html
4. The joint position statement published by the British Medical Association, the Royal College of Psychiatrists and the Royal College of Paediatrics and Child Health, which calls for the solitary confinement of children and young people to be abolished and prohibited, can be read online at: https://www.bma.org.uk/collective-voice/policy-and-research/equality/the-medical-role-in-solitary-confinement/our-joint-position-statement-on-the-medical-role-in-solitary-confinement
5. A report on the use of segregation in youth custody in England, published by the Children’s Commissioner for England, can be read online at: https://www.childrenscommissioner.gov.uk/wp-content/uploads/2018/10/Segregation-report-final.pdf
6. More information about the Joint Committee on Human Rights’ inquiry into solitary confinement and restraint can be read online at: https://www.parliament.uk/business/committees/committees-a-z/joint-select/human-rights-committee/inquiries/parliament-2017/youth-detention-solitary-confinement-17-19/
7. 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 at: https://rm.coe.int/168070a773
8. 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 at: https://www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2015/07/HMIP-AR_2014-15_TSO_Final1.pdf
9. 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 at: https://www.supremecourt.uk/cases/docs/uksc-2013-0230-judgment.pdf
10. 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.