Case Summary – AB, R (On the Application Of) v Secretary of State for Justice [2019] EWCA Civ 9 (18 January 2019) 

March 8, 2019

In this case, the Court of Appeal dismissed an appeal brought by AB, a 15 year old young offender, who contended his Article 3 Convention rights had been breached by his being subject to ‘single unlock’ (a form of solitary confinement instituted during communal hours only) when at Feltham YOI. A cross appeal by the Secretary of State in respect of the Article 8 point was also rejected.

Facts

This matter concerned AB, a young offender detained in Feltham Young Offenders Institute between December 2016-March 2017. AB complained that his being subject to the ‘single unlock’ procedure – the YOI’s procedure for keeping an individual locked in his cell during communal times – and consequent removal from association, amounted to inhuman and degrading treatment in breach of Articles 8 and 3 ECHR.

Ousley J heard the matter at first instance. Despite finding that the Secretary of State had breached rules governing the procedural oversights in AB’s removal from association, he rejected the submission that AB’s treatment surpassed the high threshold required to engage Article 3 of the Convention. Ousley J explicitly rejected any invitation to comment on the ‘single unlock’ procedure generally, examining the specific facts of and confining his conclusions to AB’s case alone. He also gave little weight to the non-ECHR international materials on which AB relied, including the UNCRC, finding that they lacked relevance, were (as non-binding instruments) at their highest an ‘interpretative aid’ to the Convention and were unable to add anything substantive to Article 3 itself.

As to Article 8, Ousley J found the Article engaged and breached in relation only to the requirement that any interference with article 8 rights must be in accordance with law (granting a declaration to that effect).

AB appealed the dismissal of his claim under Article 3. The Secretary of State cross appealed in relation to Article 8.

The appellate proceedings

AB’s contended: that the High Court failed to give sufficient weight to the UK’s international obligations under the non-Convention international law materials, and to the medical and penalogical evidence provided by AB as to the impact of single unlock treatment on detainees; that the Court had improperly treated the concepts ‘removal from association’ and ‘solitary confinement’ as one and the same; and that the Court had improperly concluded that the Convention did not allow for the application of hard-edged rules in the context of Article 3. AB asked the Court of Appeal to draw a “bright line”, calling on it to find any confinement of the kind to which AB was subject a breach of Article 3 in principle, rather than simply on the facts. In its cross appeal, the Secretary of State contended Article 8 was not engaged.

The Court dismissed both appeal and cross appeal, upholding Ousley J’s decision. It declined to draw any bright line in relation to Article 3, considering (with reference to the Strasbourg case law) that the appropriate approach was to consider each case on its facts. There was no hard and fast rule as to the maximum time of isolation before Article 3 was engaged. As to AB, the Court considered the day to day reality of the single unlock procedure as imposed on him did not meet the level of severity required for Article 3 to be engaged. It rejected the contention that Ousley J erred in his approach to the non-binding international materials, finding that the materials did not (even if relevant) have the legal effect for which AB contended. Finally, the Court of Appeal upheld the finding that Article 8 was engaged, and Ousley J’s limited decision that it had been breached.

Commentary

There are two points of note in this case. First, the Court of Appeal’s approach to the soft international law materials, which (it noted) did not assist it in the task of interpretation of the current law. These materials were either irrelevant, added nothing to Article 3 itself or were statements of future action. The Court left open the question of the weight to be accorded to these materials, on the grounds that even if they were considered the various instruments did not have the legal effect for which AB contended.

Second, the Court’s rejection of the setting of any ‘bright lines’ or ‘hard edged rules’. It considered that Article 3 called for “a highly fact-sensitive enquiry into all the circumstances of a case such as this in order to see whether the high threshold contained in it has been crossed”. Questions of quantity of or the meaningfulness of social interactions required a similarly fact-sensitive enquiry in relation to Article 8. In this context, Court did not consider there were “any “bright lines” or presumptions in this context”. For these reasons, the Court made clear that each case was to be considered on its facts.