AB, R (on the application of) v Secretary of State for Justice [2021] UKSC 28 (9 July 2021)
Citation:AB, R (on the application of) v Secretary of State for Justice [2021] UKSC 28 (9 July 2021).
Subjects invoked: 89. 'Prisons & Rehabilitation'.108. 'Right against degradation'.109. 'Right to liberty'.
Rule of thumb:If an adolescent in a young offenders’ institution behaves badly, can they be subjected to solitary confinement? Yes, this should only be used in severe circumstances, but it is nonetheless a legitimate tool to be used if every other behaviour control method has been tried and nothing else has worked – this is not inherently a human rights violation.
Background facts:
The facts of this case were that AB was 15 years old and in a young offenders’ institute. AB significantly misbehaved whilst in the young offenders’ institute. 3 practices that the authorities in the young offenders’ institute carried out were: (i) Periods of solitary confinement in his room; (ii) Banned from attending school for certain periods; (iii) Banned from being allowed to associate or talk to other certain people. AB argued that these practices were not allowed to be enforced in the young offenders’ institute.
AB argued that the above-described tactics of (i) Periods of solitary confinement in his room, and, (ii) Banned from attending school for certain periods, violated his Article 3 Right not to be subjected to degrading conditions. AB also argued that being banned from talking to or associating with other specific people in the Young Offenders institute violated his Article 8 Right to Private Life. The Young Offenders Institute argued that they use only these tactics (i) and (ii) in fairly extremely circumstances when they have tried everything else. and nothing has been shown to work to stop the person from seriously misbehaving and significantly disrupting the lives and educations of others in the Young Offenders’ Institute. They argued that it was basically impossible to run the institute without using these tactics on exceptional occasions.
The Young Offenders Institute also argued that banning certain people from associating with others was also a necessary tactic to ensure that the Institution could run. They explained that sometimes people are a terrible influence on each other, and just constantly egg each other on to significantly disrupt life and education the Institute, and this makes the lives of other people in it and staff a living hell and a misery, as well as make education impossible. They argued that it would be impossible to run one of these institutions without doing this.
Judgment:
The Court upheld the arguments of the Young Offenders’ Institute. They affirmed that the use of these 3 tactics generally do not violate human rights. It was explained that if they were used in non-exceptional situations then they may be deemed to violate human rights, however, there is not a blanket ban on them altogether as violating human rights in every situation. The Court further affirmed that for Article 3 to be banned the person has to actually be subject to violence or the threat of violence. As this was not specifically happening to AB, then his Article 3 arguments could not be upheld. In short, the Young Offenders Institute are still allowed to use these tactics to control the people in them in exceptional circumstances, if people are significantly disrupting life and education inside of them and the other tactics and approaches have been shown to be ineffective.
Ratio-decidendi:
‘74. There is no doubt that solitary confinement should be ordered only exceptionally. That is well established in the European case law: see, for example, Ahmad, para 112, to which both the courts below referred. 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. The point of the argument is not to establish those propositions. The point of the argument is that, if solitary confinement is used in the absence of exceptional circumstances rendering it strictly necessary, it is (if the argument is accepted) inevitably a violation of article 3, for that reason alone, and regardless of all other circumstances. 75. There is no support in the case law for the application of a strict necessity test in relation to solitary confinement…. 78. For the foregoing reasons, both the arguments advanced on behalf of the appellant are rejected. It follows that the appeal must be dismissed’. Lord Reed at 74-78
‘solitary confinement should be used only when genuinely necessary, especially in the case of persons under 18’, Lord Reed at 74
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.