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9 Jul 2021

Supreme Court decision on solitary confinement of a child in prison

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 or gym. 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. The High Court fell short of declaring his treatment inhuman and degrading and AB appealed that part of the decision to the Court of Appeal and the Supreme Court.

Today (Friday 9 July), the Supreme Court handed down its judgment in the appeal. The Court held that “there is no doubt that solitary confinement should be ordered only exceptionally. That is well established in the European case law… That must be especially clear in relation to detainees under 18 years of age. Equally, it can hardly be doubted that solitary confinement should be used only when genuinely necessary, especially in the case of persons under 18.”

However, the Supreme Court rejected AB’s arguments that keeping a child in solitary confinement or even prolonged solitary confinement will always be inhuman and degrading and therefore unlawful. It also rejected an alternative argument put forward on AB’s behalf that such treatment is inhuman and degrading unless it can be shown to be exceptional and strictly necessary.

In reaching its decision, the Supreme Court noted that there was no case in the European Court on Human Rights dealing with the solitary confinement of children. The Court found that it was not for the Supreme Court to anticipate whether the European Court might interpret the right not to be subjected to inhuman and degrading treatment in the context of a child in solitary confinement in prison in the way AB suggested.

AB, who cannot be named for legal reasons, is represented by the legal team of the Howard League for Penal Reform. AB will now be advised on whether or not to ask the European Court of Human Rights to consider his case.

There has been growing concern about the use of solitary confinement, both before and during the Covid-19 pandemic, with parliamentarians, medics and children’s rights experts calling for change.

The Joint Committee on Human Rights, which in 2019 found that there was evidence over several years that children can “end up in what amounts to solitary confinement…which may be prolonged”, is investigating the issue further as part of an inquiry into the human rights implications of the government’s response to Covid-19.

The Children’s Commissioner for England has submitted written evidence to the inquiry, stating: “The issue of the limited time children spend out of cells is…longstanding, although exacerbated by the crisis.

“The Children’s Commissioner’s Office undertook unannounced weekend visits across the secure estate during January and February 2020, finding it was common for children to be in their cells for in excess of 22hrs in YOIs and that in both YOIs and Secure Training Centres the range of meaningful activities on offer for children was derisory.”

In the same year, a report by Her Majesty’s Inspectorate of Prisons on the separation of children in prisons concluded: “The weaknesses of current practice and oversight are of such a magnitude that we recommend an entirely new approach, and that current practice be replaced.”

In 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.”

In September 2019, the United Nations Subcommittee on the Prevention of Torture visited Cookham Wood prison in Kent and found that children had spent up to 23-and-a-half hours per day locked in their cells. The UK’s 21 detention monitoring bodies – the National Preventive Mechanism – has called on the government to take swift action in response to the recommendations of the Subcommittee’s report, which was published last month.

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 Dan Squires QC and Ayesha Christie of Matrix Chambers.
3.    Before the Supreme Court the Secretary of State for Justice was represented by Sir James Eadie QC, Tom Weisselberg QC, Sarah Hannett and Jason Pobjoy.
4.    The Equality and Human Rights Commission intervened and before the Supreme Court was represented by Caoilfhionn Gallagher QC and Adam Wagner.
5.    Reporting restrictions are in place: The Court ordered that no one shall publish or reveal the name or address of the Appellant who is the subject of these proceedings or publish or reveal any information which would be likely to lead to the identification of the Appellant or of any member of his family in connection with these proceedings.
6.    The relevant Articles are Articles 3 and 8 of the European Convention on Human Rights. Article 3 requires that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 8 protects one’s right to respect for private and family life.
7.    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.
8.    The Joint Committee on Human Rights’ 2019 report, Youth detention: solitary confinement and restraint, can be read online. More information about the Committee’s inquiry into the government’s response to Covid-19 can be found online.
9.    Written evidence submitted by the Children’s Commissioner for England to the Joint Committee on Human Rights inquiry into the government’s response to Covid-19 can be read online. In 2018, the Children’s Commissioner published A report on the use of segregation in youth custody in England, which can be read online.
10. The thematic report by Her Majesty’s Inspectorate of Prisons, Separation of children in young offender institutions, can be read online.
11. 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.
12. The United Nations Subcommittee on Prevention of Torture’s report to the UK government about UK places of detention can be read online. The National Preventive Mechanism response to the report can be read online.

Contact

Rob Preece
Campaigns and Communications Manager
Mobile: +44 (0)7714 604955
Email: robert.preece@howardleague.org

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