R (on the application of AB) v. the Secretary of State for Justice
High Court of Justice (Queen’s Bench Division, Administrative Court)
4 July 2017
Article 37: Torture and deprivation of liberty
General comment No. 10
Other International Provisions:
European Convention on Human Rights, Articles 3 and 8.
Prisons Act 1952
Young Offender Institution Rules, SI No. 2000/3371
Prison Service Order 1700
A teenage boy (AB) was detained at Feltham Young Offenders Institution in London on a 12 month detention and training order. He had had a traumatic childhood, including emotional and physical abuse and had been diagnosed with post traumatic stress disorder, conduct disorder and attention deficit hyperactivity disorder. The boy also had a history of committing criminal offences and a record of being violent and disruptive while he was in detention. The prison where he was detained placed him under a regime that involved being locked in a cell on his own for more than 22 hours a day with limited access to education and without contact with others.
Issue and Resolution:
Solitary confinement. The use of solitary confinement did not meet the standards set by national law and violated the right to private and family life under the European Convention on Human Rights. The court found that prolonged solitary confinement did not violate the prohibition of inhuman or degrading treatment under the ECHR.
The court found that the failure to provide 15 hours of education per week violated prison rules on the education of children who are detained and ordered that this requirement be met.
The court also found that the right to private and family life under article 8 of the ECHR had been violated by preventing the boy from associating with other detainees, as the way in which this decision was made did not meet the requirements set out in national law and so was not “in accordance with the law” as required under article 8.
The court rejected the argument that the use of solitary confinement for the boy amounted to a violation of article 3 of the European Convention on Human Rights, following a detailed discussion of his treatment. In particular, the court rejected the claim that prolonged solitary confinement of a young person of more than 15 days breaches the prohibition of inhuman or degrading treatment.
Excerpts citing CRC and other relevant human rights instruments:
101. General Comment No.10 of 2007 of the UN Committee on the Rights of the Child, UNCRC, referring to Article 37 of the Convention on the Rights of the Child itself, which for these purposes uses materially the same language as Article 3 ECHR, repeated the sort of language of Rule 67, but expressly applying it to children.
102. The UNCRC, in its fifth periodic report on the UK, in 2016, expressed its concern that "segregation, including solitary confinement, is sometimes used for children in custody, including in young offenders' institutions," and recommended that the use of solitary confinement for them should cease immediately.
112. Third, I consider that Mr Squires' approach takes the legitimate use of UNCAT and the Convention on the Rights of the Child, CRC, far too far. These Conventions have not been incorporated wholesale into domestic law. So far as material for this case, the Conventions are no more than an interpretative aid for Article 3, and the ECtHR would use them for that purpose. But the language of those Conventions adds nothing to the language of Article 3. There is no Article in either which deals with the topic of segregation of young people. The language of Article 3 is not ambiguous either, as Mr Weisselberg submitted. The resolution of ambiguities is not necessarily the limit of the interpretative role which the ECtHR gives to other international conventions, though UK Courts may do so; R (SG and Others) v Secretary of State for Work and Pensions  UKSC 16,  1 WLR 1449, a case on benefit caps. I detect from that decision a high degree of caution and strictness about the interpretative use to which the CRC could be put, where not part of applicable UK domestic law. There is no issue of the sort considered in Zoumbas v SSHD  UKSC 74,  1 WLR 3690, as to the relevant test for the weight to be given to the interests of a child under Article 8 in a case concerning the removal of a parent.
113. Fourth, I do not attach any real weight to General Comment No.10 of the UN Committee on the Rights of the Child, which is not directed so much as to the meaning of the UN Convention on the Rights of the Child itself, as to its application. Giving interpretative weight to an international Convention where there is ambiguity in another Convention with which consistency is likely, or where materially similar language is used, is not the same at all as adopting the views of its Committee as to whether particular circumstances breach it. Giving weight to such views of the Committee is not really an exercise in interpretation at all. Doing so is still less appropriate when the relevant Convention being interpreted is a different one, the ECHR, with its own Court which decides not just its autonomous meaning, but its fact sensitive application. Whether circumstances amount to a breach of the ECHR is a matter for the judicial body tasked with deciding the issue in the case before it, and not for the UNCRC. The Committee, legitimately, may well be trying to bring about what it sees as desirable changes in policy and practice, but it is not performing a judicial function. Besides, the language of the Comment, with that of the UN Rules, Rule 67, does not advance AB's case. The removal from association was not a punishment or disciplinary measure in the sense used in the Rule or Comment, and is more obviously directed at treatment intended to degrade or humiliate.
115. It is therefore for this Court to decide whether, on the facts of the case, a particular individual has been treated in a way which breaches Article 3. Other bodies, lawyers or psychiatrists or committees, are entitled to have a view on that issue but I do not and in my view should not treat them even as persuasive. To do so would undermine the judicial function of the High Court. That is of course not to deny their evidence of the risk of harm to juveniles or those who are mentally ill. But it is at least important to see the evidence for what it is truly worth to the judicial decision which I have to make. Although the CPT reached a view about two young people in Cookham Wood and Article 3, it did not automatically apply the definition to all those who were on the separation list, at least as I read it, for what assistance that would have afforded.
The Howard League for Penal Reform is appealing the decision and a hearing is set for November 2018.
CRIN believes this decision is inconsistent with the Convention on the Rights of the Child (CRC). The Committee on the Rights of the Child held in its General Comment No. 10 that closed or solitary confinement of children is strictly prohibited as a violation of article 37 of the CRC.
 EWHC 1694
Link to Full Judgment:
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