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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> AB (A Child), R (On the Application Of) v The Secretary of State for Justice  EWHC 1694 (Admin) (04 July 2017)
Cite as:  WLR(D) 454,  EWHC 1694 (Admin),  4 WLR 153
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
On the Application of "AB" (a child, by his Litigation Friend)
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
|YOUTH JUSTICE BOARD
|EQUALITY AND HUMAN RIGHTS COMMISSION
Tom Weisselberg QC and Sarah Hannett (instructed by the Government Legal Department) for the Defendant and Interested Party
Caoilfhionn Gallagher QC and Hayley Douglas (instructed by the Equality and Human Rights Commission) for the Intervener
Hearing dates: 25-27 April 2017
Crown Copyright ©
Mr Justice Ouseley:
The background to AB
Removal from association: the Rules and the admitted breaches
"(1) Where it appears desirable, for the maintenance of good order or discipline 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 of 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 Rules on education and the admitted breaches
"in particular, by –(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."
"(1) 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."
"(1) Provision shall be made at a young offender institution for the education of inmates by means of programmes of class teaching or private study within the normal working week and, so far as practicable, programmes of evening and weekend educational classes or private study. The educational activities shall, so far as practicable, be such as will foster personal responsibility and an inmate's interests and skills and help him to prepare for his return to the community.
(2) In the case of an inmate of compulsory school age, arrangements shall be made for his participation in education or training courses for at least 15 hours a week within the normal working week."
"(1) Provision shall be made at a young offender institution for the physical education of inmates within the normal working week, as well as evening and weekend physical recreation. The physical education activities shall be such as will foster personal responsibility and an inmate's interests and skills and encourage him to make good use of his leisure on release.
(2) Arrangements shall be made for each inmate, other than one to whom paragraph (3) and (5) applies, to participate in physical education for at least two hours a week on average or, in the case of inmates detained in such institutions or parts of institutions as the Secretary of State may direct, for at least 1 hour each weekday on average, but outside the hours allotted to education under rule 38(2) in the case of an inmate of compulsory school age."
Article 3 ECHR: the law in general
Article 3: The treatment of AB in Feltham YOI
The Hales-Adshead Joint Report and other evidence
"3.37 AB presented as much the same as when I met with him regularly at HMYOI Cookham Wood. His medical notes indicate recurrent impulsivity with him making frequent rude / abusive statements that could be considered rude or threatening but were just things he said without thinking. On assessment, he showed some signs of maturity compared to when he was a HMYOI Cookham Wood, noting that if he had a private therapist he would be able to continue therapy on leaving prison. He was able to talk about his behaviour towards officers and noted that he had not assaulted any. However, he was not yet able to think about why his behaviour may have placed him at risk from peers; this is consistent with the institutionalisation he has had during childhood, in open and secure accommodation. Furthermore, his shouting out of abusive things to peers is also a common presentation of young people with ADHD and conduct disorder."
(a) cause direct harm to mental health,
(b) worsen any pre-existing mental health condition and
(c) affect the development of important neural connections in the brain that specifically take place during puberty and adolescence."
She summarised the effect of a number of papers about the adverse effect of solitary confinement on adults, children and on those who have experienced childhood trauma. She then said this, followed by the joint conclusions:
"4.7 In a case like AB's, the concern must be that solitary confinement is acting as a further form of childhood trauma and adversity; that induces fear, anger, social isolation and shame. AB has indicated that he believes that he has been placed in solitary confinement as punishment, and to make him feel bad for things he has done. It does not appear from Dr Hale's interview that he experiences being 'banged up' as protection.
4.8 Further, there is evidence that AB is already psychologically vulnerable and may therefore be especially vulnerable to the effects of isolation. It is known that he had been exposed to significant childhood adversity in the form of (i) parental substance misuse (ii) parental mental health problems (iii) exposure to domestic violence in the home and (iv) exposure to emotional abuse. AB has already been diagnosed with PTSD because of some of these events.
4.9 Therefore, in a case like AB's, there are grounds for concern that the experience of solitary confinement may significantly increase the risk that (a) there will be an exacerbation of the damage that has been done by previous childhood adversity and (b) the confinement itself will act as a further form of adversity that will make his mental health problems worse not better. This effect will be both short term but also may be long term into adulthood.
5 Conclusion by Dr Hales and Dr Adshead
5.1 There is evidence that prolonged solitary confinement of children creates a significant risk of causing long term psychiatric harm; that is especially so for people with pre-existing mental health conditions, like AB. Placing children like AB in solitary confinement for prolonged periods creates a risk of long term harm which may not be detected at the time because of the uncertain effect on neuronal development. Effects might be quite subtle; and not manifest themselves until some other stressor takes place; this is common post-traumatic process.
5.2 Further, there is a strong professional consensus that solitary confinement is especially risky for adolescents and should not be used."
The case law on segregation
"The Court has considered treatment to be 'inhuman' because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be 'degrading' because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In considering whether a punishment or treatment is 'degrading' within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3."
The Court continued at  saying that the treatment, to breach Article 3, had to "go beyond the inevitable element of suffering and humiliation connected with a given form of legitimate treatment," and the measures taken had to be necessary to attain the legitimate aim being pursued. This notorious terrorist had been in solitary confinement for more than 8 years, and concerns had been expressed by the Committee for the Prevention of Torture about possible long-term effects of isolation on him, concerns which the ECtHR shared, yet it found no violation of Article 3. Segregation from the prison community was not of itself a breach of Article 3.
"… in the context of ill-treatment of prisoners, the following factors, among others, have been decisive in the Court's conclusion that there has been a violation of Article 3:
• the presence of premeditation;
• that the measure may have been calculated to break the applicant's resistance or will;
• an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority;
• the absence of any specific justification for the measure imposed;
• the arbitrary punitive nature of the measure;
• the length of time for which the measure was imposed; and
• the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. …"
I also accept that the age of a prisoner is relevant, though none of these factors are necessarily of themselves individually determinative. It depends on all the facts. Age was one of the factors listed in Ramirez-Sanchez v France, above, at  where the ECtHR said that the assessment of the minimum level of severity depended "on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some case, the sex, age and state of health of the victim…"
"At para. 207 of its judgment in Ahmad the Court said:
"Other forms of solitary confinement which fall short of complete sensory isolation may also violate Article 3. Solitary confinement is one of the most serious measures which can be imposed within a prison and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. Indeed, as the Committee's most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is."
"The Court went on to say at para. 208:
"At the same time, however, the Court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. In many states parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners."
"At para. 209 the Court said:
"Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned."
"At para. 210 the Court said:
"In applying these criteria, the Court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for Article 3. The Court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely."
"At para. 211 the Court said:
"Equally, although it is not for the Court to specify which security measures may be applied to prisoners, it has been particularly attentive to restrictions which apply to prisoners who are not dangerous or disorderly; to restrictions which cannot be reasonably related to the purported objective of isolation; and to restrictions which remain in place after the applicant has been assessed as no longer posing a security risk."
"At para. 212 the Court said:
"Finally, in order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner's welfare and the proportionality of the measure. First, solitary confinement measures should be ordered only exceptionally and after every precaution has been taken, as specified in para. 53.1 of the European Prison Rules. Secondly, the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended. Thirdly, the authorities' decisions should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner's circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by. Fourthly, a system of regular monitoring of the prisoner's physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances. Lastly, it is essential that a prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement."
"Research into the mental health of prisoners held in solitary confinement indicates that for most prisoners there is a negative effect on their mental wellbeing and that in some cases the effects can be serious. A study by Grassian & Friedman (1986) stated that, 'Whilst a term in solitary confinement would be difficult for a well adjusted person, it can be almost unbearable for the poorly adjusted personality types often found in a prison.' The study reported that the prisoners became hypersensitive to noises and smells and that many suffered from several types of perceptual distortions (e.g. hearing voices, hallucinations and paranoia)."
"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 psychosis 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."
Conclusions on Article 3
Article 8 ECHR
"125. The critical question is whether the prisoner's continued segregation is justified having regard to all the relevant circumstances. Those will include the reasonableness of any apprehension that his continued association with other prisoners might lead to a breakdown in good order and discipline within the prison; the suitability of available alternatives; the potential consequences to the prisoner if authorisation is granted; and the potential consequences to others if it is not. The answer to the question requires the exercise of judgment, having regard to information and advice from a variety of sources, including the governor, health care professionals and the prisoner himself.
126. In proceedings for judicial review, the court has full jurisdiction to review evaluative judgments of that kind, considering their reasonableness in the light of the material before the decision-maker, whether the appropriate test has been applied, whether all relevant factors have been taken into account, and whether sufficient opportunity has been given to the prisoner to make representations. This court has explained that the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests: see, for example, Pham v Secretary of State for the Home Department (Open justice Society Justice Initiative intervening)  1 WLR 1591. The potential consequences of prolonged segregation are so serious that a court will require a cogent justification before it is satisfied that the decision to authorise its continuation is reasonable. It should also be noted that although judicial review does not usually require the resolution of disputes of fact, or cross-examination, that is not because they lie beyond the scope of the procedure. Judicial review is a sufficiently flexible form of procedure to enable the court to deal with the situation before it is required: see, for example R (Wilkinson) v Broadmoor Special Hospital Authority  1 WLR 419."