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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AB, R (On the Application Of) v Secretary of State for Justice  EWCA Civ 9 (18 January 2019)
Cite as:  EWCA Civ 9,  4 WLR 42,  WLR(D) 26,  4 All ER 152
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Ouseley
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOYLAN
LORD JUSTICE SINGH
| The Queen on the application of AB (by his Mother and Litigation Friend CD)
|- and -
|Secretary of State for Justice
Youth Justice Board
Equality and Human Rights Commission
Mr Tom Weisselberg QC and Ms Sarah Hannett (instructed by the Government Legal Department) for the Respondent and the Interested Party
Ms Caoilfhionn Gallagher QC and Mr Adam Wagner (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing dates: 7-8 November 2018
Crown Copyright ©
Lord Burnett of Maldon CJ, Moylan LJ and Singh LJ:
Material provisions of the ECHR
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."
Material provisions in the Rules
"The aim of a Young Offender Institution shall be to help offenders to prepare for their return to the outside community."
"(a) Providing a programme of activities, including education, training and work designed to assist offenders to acquire or develop personal responsibility, self-discipline, physical fitness, interests and skills and to obtain suitable employment after release; …"
"An inmate shall be occupied in a programme of activities provided in accordance with Rule 3 which shall include education, training courses, work and physical education."
"In the case of an inmate of compulsory school age, arrangements shall be made for his participation in education or training course for at least 15 hours a week within the normal working week."
"(1) Where it appears desirable, for the maintenance of good order or discipline ["GOOD"] or in his own interests, that an inmate should not associate with other inmates, either generally or for particular purposes, the governor may arrange for the inmate's removal from association for up to 72 hours.
(2) Removal for more than 72 hours may be authorised by the governor in writing who may authorise a further period of removal for up to 14 days.
(2A) Such authority may be renewed for subsequent periods of up to 14 days.
(2B) But the governor must obtain leave from the Secretary of State in writing to authorise removal under paragraph (2A) where the period in total amounts to more than 42 days starting with the date the inmate was removed under paragraph (1).
(2C) The Secretary of State may only grant leave for a maximum period of 42 days, but such leave may be renewed for subsequent periods of up to 42 days by the Secretary of State.
The judgment of Ouseley J
(1) AB often had to be moved out of the various Units in Feltham, including frequent returns to the Induction Unit, because his behaviour (including the making of racist remarks, mentioned at ), made integration impossible ,  and . Various threats of assault were made towards officers.
(2) Though lacking the frequency required by the procedural Rules, Multi-Disciplinary Meetings ("MDMs"), partly concerned with reviewing the treatment of AB, did take place. They began on 24 January 2017 and continued thereafter: . At those meetings, staff discussed AB's behaviour and ways for him to move forward in shorter and longer terms. There were then subsequent MDMs on 15 February 2017  and 19 April 2017 .
(3) The first Deputy Director of Custody ("DDC") review was on 2 February 2017. This authorised AB's removal from association until 24 February 2017, and the decision was "solely based on a desire to keep him safe from harm from others": .
(4) AB was, at various points, both permitted, , and not permitted, , to exercise in the gym. Often, the lack of gym time was attributable to a lack of resources, .
(1) At , he found that the purpose and reasons for the treatment are relevant in assessing whether inhuman or degrading treatment is made out, citing Ramirez-Sanchez v France (2007) 45 EHRR 49, at . The measures taken had to be necessary to attain the legitimate aim being pursued.
(2) At , Ouseley J cited the "decisive" factors to be considered when analysing whether a prisoner's article 3 rights had been breached, outlined in Ahmad v United Kingdom (2013) EHRR 1, at , and cited by Singh J in Dennehy, at . They include:
a) the presence of premeditation;
b) the intention to break the individual's resistance or will;
c) the intention to humiliate or debase, or the implementation of a measure causing fear, anguish or feelings of inferiority;
d) the absence of specific justification for the measure;
e) the arbitrary punitive nature of the measure;
f) the length of time for which the measure was imposed;
g) any degree of distress or hardship exceeding the levels unavoidable within the detention context.
(3) Ouseley J also accepted that the age of the person under consideration is relevant, citing Ramirez-Sanchez, at .
(4) Ouseley J considered that Ahmad also stands for the proposition that, at least in the adult context, no specific minimum period of segregation would, in itself, constitute a breach of article 3, at . The Court in Ahmad (discussed at  of Ouseley J's judgment) stated, at , that no precise rules could be set down; rather, the question whether the threshold conditions of article 3 had been met depended on "the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned" . In order to avoid arbitrariness, attention must be paid to the purpose of the restriction applied to the prisoner  and the procedural safeguards in place . Similar considerations have been outlined in domestic authority, for example in R (Bourgass and Hussain) v Secretary of State for Justice  UKSC 54;  AC 384, also emphasising the consequences for the prisoner.
(5) At , Ouseley J cited Munby J's judgment in R (Howard League for Penal Reform) v Secretary of State for the Home Department  EWHC 2497 (Admin);  1 FLR 484, that articles 3 and 8 impose positive obligations on the state to treat vulnerable individuals like children with respect, involving a balance of their interests against those of the community, but always treating the interests of the child as a primary consideration.
(1) As adumbrated above, the case law indicates that a fact-sensitive approach, taking account of all the circumstances, including the purpose of the segregation, is required in an article 3 analysis, .
(2) Mr Squires placed too much weight on non-ECHR international materials. Neither the UN Convention on the Rights of the Child ("UNCRC") nor the UN Convention Against Torture ("UNCAT") is incorporated into domestic law, meaning that they can constitute no more than an interpretative aid in relation to article 3. Further, nothing in the wording of those Conventions adds anything of any content to article 3, lacking any specific provision on the topic of segregation of young people .
(3) In that light, no real weight should be accorded to General Comment No. 10 of the UN Committee on the Rights of the Child ("the Committee"), which is concerned with the application of the UNCRC. The High Court, when required to consider how to apply one Convention (the ECHR), need not give weight to the views of another body, the Committee, on how they applied a different treaty. That would not really be an exercise of interpretation at all .
(4) Focus on the question of whether "removal from association" constituted "solitary confinement" within the international definitions of the latter distracted from what mattered in this case. References to the Istanbul Statement at the International Psychological Trauma Symposium at , or to the decision in Bourgass at , regarding these definitional questions distract from the fundamental substantive question of whether article 3 has been breached on the facts, irrespective of labels.
(5) At  to , various pieces of medical and penological evidence were considered and their utility questioned by Ouseley J.
(6) Turning to the facts at  to , and drawing in particular on the principles outlined in Ahmad, Ouseley found that article 3 was not breached. Nothing was done intending to humiliate or degrade AB; nor was any of the treatment intended as punishment (it was intended to protect both AB and others). This protective purpose meant that the treatment always had a considered and proper justification. AB always had proper medical care and contact with his solicitors. Finally, some procedural oversight took place, albeit with a frequency insufficient to satisfy the Rules.
(7) Importantly, Ouseley J said, AB was never kept in "total solitary confinement". The assessment of this, Ouseley J accepted, encompasses both quantitative and qualitative components. The number of hours he was allowed to leave his cell varied each week, and he had limited forms of social contact, through the gym and occasional table tennis matches with an officer.
(8) Lastly, Ouseley J rejected Mr Squires' submissions as to the harm caused to AB. There was no evidence of a worsening of AB's mental health problems. At its highest, the evidence only showed a "latent risk" of such. Even then, there was little evidence of this, and in any event, the Secretary of State had not had fair notice of a "latent risk" rather than "actual harm" argument, given that this was advanced late in the proceedings.
Grounds of Appeal
(1) Ouseley J was wrong to hold that the approach required under the ECHR did not admit of the application of hard-edged rules, preferring a fact-sensitive approach. There are numerous examples in which the Strasbourg Court and domestic courts have drawn hard-edged rules in article 3 detention cases:
a) In Ahmad the Strasbourg Court said that "complete sensory isolation" was absolutely prohibited under article 3.
b) In Vinter v UK (2016) 63 EHRR 1 that Court held that whole life sentences with no possibility of review whatsoever were prohibited under article 3.
c) In Mursic v Croatia (2017) 65 EHRR 1, the Court found that the detainee's personal space falling below 3sqm raises a strong presumption that Article 3 has been breached. This presumption is not rebuttable by reference to "all the facts"; only those reductions in cell space which were "short, occasional and minor" could rebut that presumption.
d) In R (C (A Minor)) v Secretary of State for Justice  EWCA Civ 882;  QB 657, the Court of Appeal found that physical restraint of children detained in Secure Training Centres to maintain good order and discipline amounted to prima facie inhuman or degrading treatment.
(2) Ouseley J placed insufficient weight on the hard international legal materials concerning solitary confinement of children. Rather than (as he said) the role of the UNCRC in domestic law being limited to the "resolution of ambiguities" in the ECHR, all members of the UK Supreme Court held in R (SG) v Secretary of State for Work and Pensions  UKSC 16;  1 WLR 1149 that the relevant international treaties should inform the interpretation of the ECHR without requiring any ambiguity therein (per Lord Reed at  to , Lord Carnwath at ,  to , , Lord Hughes at , Lady Hale at  to , and Lord Kerr at  to .)
(3) Numerous authorities from the Strasbourg Court, such as Neulinger v Switzerland (2010) 54 EHRR 1087, at , quoted approvingly by Lady Hale in ZH (Tanzania) v SSHD  UKSC 4;  2 AC 166, at , and Demir v Turkey (2009) 48 EHRR 54, state that the ECHR must be interpreted in harmony with international law. Further, the UNCRC must be taken into account when interpreting ECHR rights applicable to children, per Lady Hale in R (R) v Durham Constabulary  UKHL 21;  1 WLR 1184, at .
(4) Ouseley J made an error of law in considering that the views of the Committee on the UNCRC were not persuasive. That was contrary to the views of Lord Carnwath and Lord Hughes in SG ( to  and  to ), as endorsed by the Supreme Court in Mathieson v Secretary of State for Work and Pensions  UKSC 47;  1 WLR 3250.
(5) Ouseley J's analysis that regarding soft international law materials as persuasive would undermine the function of the High Court was flawed, being contrary to the views of the Strasbourg Court as exhibited in many judgments, including Gafgen v Germany (2011) 52 EHRR 1.
(1) First, he criticised Dr Kraus' report as treating the effects of solitary confinement as having the same impact on all children. But the expert evidence is clear: there is a substantial risk to all children.
(2) Secondly, Ouseley J's concern that the "serious latent risk" argument had not been advanced with fair notice to the Secretary of State was misplaced. The case for AB has always been that the harm may not have already been caused, but there is potential that lasting and serious harm may eventuate.
(3) Thirdly, Ouseley J's view that latent harm was not established was flawed. It is hard to see how latent harm could be established beyond identifying a "significantly" increased risk, as Drs Hales and Adshead said in their expert report.
(4) Fourthly, it does not undermine the function of the High Court to treat the views of experts as persuasive, and proper weight should be given to those views.
The Appellant's submissions at the hearing
The Equality and Human Rights Commission's Submissions
"In determining the present question, the House is required by section 2(1) of the Human Rights Act 1998 to take into account any relevant Strasbourg case law. While such case law is not strictly binding, it has been held that courts should, in the absence of some special circumstances, follow any clear and constant jurisprudence of the Strasbourg court: R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions  2 AC 295, para. 26. This reflects the fact that the Convention is an international instrument, the correct interpretation of which can be authoritatively expounded only by the Strasbourg court. From this it follows that a national court subject to a duty such as that imposed by section 2 should not without strong reason dilute or weaken the effect of the Strasbourg case law. It is indeed unlawful under section 6 of the 1998 Act for a public authority, including a court, to act in a way which is incompatible with a Convention right. It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."
"I would respectfully suggest that last sentence could as well have ended: 'no less, but certainly no more.' There seems to me, indeed, a greater danger in the national court construing the Convention too generously in favour of an applicant than in construing it too narrowly. In the former event the mistake will necessarily stand: the member state cannot itself go to Strasbourg to have it corrected; in the latter event, however, where Convention rights have been denied by too narrow a construction, the aggrieved individual can have the decision corrected in Strasbourg. …" (emphasis in original)
"there are however cases where the English courts can and should, as a matter of domestic law, go with confidence beyond existing Strasbourg authority. If the existence or otherwise of a Convention right is unclear, then it may be appropriate for domestic courts to make up their minds whether the Convention rights should or should not be understood to embrace it".
The Respondent's submissions
(1) On ground 1, the judge rightly held that whether article 3 had been breached was a question that turned on all the facts of a particular case. The judge was right to conclude that the UNCRC, UNCAT and soft law materials did not assist in the interpretation of the ECHR.
(2) Ground 2: the Judge was right to reject the medical evidence for the reasons he gave.
(3) Ground 3: the Judge considered all the circumstances of AB's removal from association, including time spent in and out of his cell. He was well aware of the facts as to what AB was or was not doing during Phase 1 and did not think that all that had occurred was that AB was removed from association. Putting the label "solitary confinement" on those circumstances would not have affected the decision reached.
(4) Ground 4: this ground, which arises under article 8 (if it is engaged, which the Secretary of State denies) is unarguable for essentially the same reasons as advanced in respect of Ground 3.
Discussion and Analysis
The UN Convention on the Rights of the Child 1989
"(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. …
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. …"
The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984
General Comment No. 10 of the UNCRC
"Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of Article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned; …"
The Istanbul Statement on the use and effects of solitary confinement
"Recent years have seen an increase in the use of strict and often prolonged solitary confinement practices in prison systems in various jurisdictions across the world. This may take the form of a disproportionate disciplinary measure, or increasingly, the creation of whole prisons based upon a model of strict isolation of prisoners. While acknowledging that in exceptional cases the use of solitary confinement may be necessary, we consider this a very problematic and worrying development. We therefore consider it timely to address this issue with an expert statement on the use and effects of solitary confinement."
"Solitary confinement is the physical isolation of individuals who are confined to their cells for twenty-two to twenty-four hours a day. In many jurisdictions prisoners are allowed out of their cells for one hour of solitary exercise. Meaningful contact with other people is typically reduced to a minimum. The reduction in stimuli is not only quantitative but also qualitative. The available stimuli and the occasional social contacts are seldom freely chosen, are generally monotonous, and are often not empathetic."
"It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one-third and as many as 90% of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and sycosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions.
Individuals may react to solitary confinement differently. Still, a significant number of individuals will experience serious health problems regardless of the specific conditions, regardless of time and place, and regardless of pre-existing personal factors. The central harmful feature of solitary confinement is that it reduces meaningful social contact to a level of social and psychological stimulus that many will experience as insufficient to sustain health and wellbeing."
"The use of solitary confinement should be absolutely prohibited in the following circumstances:
- For death row and life-sentenced prisoners by virtue of their sentence.
- For mentally ill prisoners.
- For children under the age of 18."
Note by the Secretary-General to the General Assembly of 5 August 2011
"There is no universally agreed upon definition of solitary confinement."
However, it went on to refer to the Istanbul Statement, which we have cited earlier.
"… The Special Rapporteur defines solitary confinement as the physical and social isolation of individuals who are confined to their cells for 22-24 hours a day. Of particular concern to the Special Rapporteur is prolonged solitary confinement, which he defines as any period of solitary confinement in excess of 15 days. He is aware of the arbitrary nature of the effort to establish a moment in time when an already harmful regime becomes prolonged and therefore unacceptably painful. He concludes that 15 days is the limit between 'solitary confinement' and 'prolonged solitary confinement' because at that point, accordingly to the literature surveyed, some of the harmful psychological effects of isolation can become irreversible."
"International and regional human rights bodies have taken different approaches to address the underlying conditions of social and physical isolation of detainees, and whether such practices constitute torture or cruel, inhuman or degrading treatment or punishment …"
"United Nations Treaty bodies consistently recommend that juvenile offenders, children or minors should not be subjected to solitary confinement … Juveniles are often held in solitary confinement either as a disciplinary measure, or to separate them from the adult inmate population, as international human rights law prohibits the intermingling of juvenile and adult prison populations. Regrettably, solitary confinement as a form of punishment of juvenile detainees has been prevalent in States such as Jamaica …, Paraguay … and Papua New Guinea …"
"States should abolish the use of solitary confinement for juveniles and persons with mental disabilities. Regarding disciplinary measures for juveniles, the Special Rapporteur recommends that States should take other measures that do not involve the use of solitary confinement. …"
The 6th Annual Report of the UK's National Preventive Mechanism
"Children should not be isolated as a punishment, and should never be held in conditions that amount to solitary confinement."
The Response to the 5th Periodic Report of the UK of the UN Committee on the Rights of the Child
"Segregation, including solitary confinement, is sometimes used for children in custody including in Young Offenders' Institutions."
(f) Immediately remove all children from solitary confinement, prohibit the use of solitary confinement in all circumstances and regularly inspect the use of segregation and isolation in child detention facilities."
Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment dated 19 April 2017
"The situation was particularly bleak for the 43 juveniles on the main accommodation wings who, for various reasons, could not take part in education or activities. The majority of these juveniles were offered around three and a half hours to exercise, associate and eat communally. However, a large minority were placed on a so-called 'separation' list by management, as far as the delegation could ascertain, for reasons of repeated violence or for their own protection from gang or personal rivalries. This was denoted by a vivid pink sign stuck on the cell door that read 'do not unlock'. In effect, this meant that the juvenile was not unlocked other than for 30 minutes for a solitary period of exercise and for meal times – when he was accompanied to pick up his food, which he ate alone in his cell. These juveniles were locked up alone in their cells for 23 and a half hours per day, with only a television for company.
The delegation interviewed one juvenile who spent 23.5 hours a day lying on his bed, under his covers, blankly looking at a TV screen, talking and meeting no one. It also met a 15-year-old who had been held in these conditions for several weeks and he had no information about how much longer he would be held under such a restricted regime. They were effectively being held in conditions of solitary confinement. In the CPT's view, holding juvenile inmates in such conditions amounts to inhuman and degrading treatment." (underlining in original)
"The CPT wishes to stress that any form of isolation may have a considerably detrimental effect on the physical and/or mental well-being of juveniles. In this regard, the Committee observes an increasing trend at the international level to promote the abolition of solitary confinement as a disciplinary sanction in respect of juveniles. Particular reference should be made to the United Nations Standard Minimum Rules on the Treatment of Prisoners (Nelson Mandela Rules) which have recently been revised by a unanimous resolution of the General Assembly and which explicitly stipulate in Rule 45(1) that solitary confinement shall not be imposed on juveniles. The CPT fully endorses the approach. The CPT considers that the current YOI Rules concerning cellular confinement of up to seven days as a disciplinary punishment discipline should be amended and brought in line with the above precepts.
The CPT also considers that juvenile inmates should never be placed in conditions akin to solitary confinement for the purposes of GOOD (i.e. 'removal of association' to the segregation unit), as regulated by YOI Rules. There may be occasions when particular juveniles may need to be managed separately for short periods, but this should involve providing the juvenile inmate concerned with additional support from staff and ensuring access to purposeful activities, including physical exercise and education.
More generally, juveniles who require management under GOOD should in fact be placed in small staff-intensive units, where their behaviour can be better managed and they can be gradually reintegrated into the main inmate population.
The CPT recommends that the United Kingdom authorities take urgent steps to ensure that the YOI Rules are amended to reflect the increasing trend at the international level to promote the abolition of solitary confinement as a disciplinary sanction in respect of juveniles.
It also recommends that juveniles should not be placed in segregation for the purposes of GOOD and should instead be placed in small staff-intensive units.
More generally, until such a time as the above two recommendations are fully implemented, the authorities should ensure that the separation, removal from association, cellular confinement or segregation of juveniles – in whatever form it takes – should be applied only as a means of last resort, and that the juveniles concerned should continue to be granted access to education, physical exercise and possibilities of association." (Italics and bold in original)
Standard Minimum Rules for the Treatment of Prisoners
"For the purpose of these Rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact. Prolonged solitary confinement shall refer to solitary confinement for a time period in excess of 15 consecutive days."
"1. Solitary confinement shall be used only in exceptional cases as a last resort, for as short a time as possible and subject to independent review, and only pursuant to the authorisation by a competent authority. It shall not be imposed by virtue of a prisoner's sentence.
2. The imposition of solitary confinement should be prohibited in the case of prisoners with mental or physical disabilities when their conditions would be exacerbated by such measures. The prohibition of the use of solitary confinement in similar measures in cases involving women and children, as referred to in other United Nations standards and norms in crime prevention and criminal justice, continues to apply."
"All disciplinary measures constituting cruel, inhuman or degrading treatment shall be strictly prohibited, including corporal punishment, placement in a dark cell, closed or solitary confinement or any other punishment that may compromise the physical or mental health of the juvenile concerned. The reduction of diet and the restriction or denial of contact with family members should be prohibited for any purpose. Labour should always be viewed as an educational tool and a means of promoting the self-respect of the juvenile in preparing him or her for return to the community and should not be imposed as a disciplinary sanction. No juvenile should be sanctioned more than once for the same disciplinary infraction. Collective sanctions should be prohibited."
Application of principles to facts of this case
"I realise that there were regrettable delays in getting him access to education and also a broader regime. At the initial stage of his time at Feltham, our main focus was on addressing his behaviour in a positive way and although his behaviour could have been managed by moving him to our segregation unit we decided that engagement with him in normal location was likely to be more successful".
The cross-appeal by the Secretary of State
(1) First, the loss of the right to associate is an inevitable consequence of a sentence of imprisonment and, secondly, that restriction on the right to associate is a normal result of prison life, and it does not follow from this that article 8 is engaged.
(2) If removal from association has a serious impact on a prisoner's mental health, protection may be provided by article 3. But, for article 8 purposes, segregation under rule 49 is not complete isolation. Prisoners can interact with others in a limited manner, and a flexible approach is taken to how they are held in isolation.
(3) Segregation only engages article 8 where it has some impact on an individual's mental health, as article 8's definition of private life stretches only to "physical and psychological integrity of a person" and a respect for personal autonomy.
(4) In Dennehy, Singh J was wrong to hold that he was bound by the decisions in R (Munjaz) v Mersey Care NHS Trust  UKHL 58;  2 AC 148 or Shahid v Scottish Ministers  UKSC 58;  AC 429 to conclude that article 8 was engaged. In Shahid, this point was not argued but was a simple concession. Moreover, Munjaz was concerned with the very different area (in terms of policy reasons) of detention for mental health purposes, and, in any event, the majority of the Committee did not find that article 8(1) was engaged, with Lord Hope of Craighead saying this expressly, and Lord Bingham of Cornhill only addressing the question of justification under article 8(2).
"The issue is one which has been recently considered by the Supreme Court [in Shahid]. Although … the point was the subject of concession, nevertheless Lord Reed expressly endorsed that concession and stated that it reflected the approach taken by the European Court in Munjaz. Furthermore, Lord Reed went on to deal at length with the question of justification under article 8(2). He would not have needed to do so if he not been of the opinion that article 8(1) was in principle applicable to seclusion of prisoners."
Note 1 The appeal in this case is listed for hearing in the Court of Appeal on 13 February 2019. [Back]
Note 1 The appeal in this case is listed for hearing in the Court of Appeal on 13 February 2019. [Back]