R v Secretary of State for Justice

Facts

AB, then aged 15, was detained in a young offender institution. For prolonged periods he was removed from association with other detainees and kept in his cell for most of the day, with little education or meaningful human contact. He brought a claim against the Secretary of State alleging that his treatment violated Articles 3 and 8 of the Convention.

History

The High Court held that his treatment breached the Young Offender Institution Rules and Article 8, but rejected the claim under Article 3. The Court of Appeal dismissed his appeal on Article 3, and he appealed to the Supreme Court.

Issue

Whether the solitary confinement of a child in a young offender institution is inherently a violation of Article 3, and more generally how far domestic courts applying the Human Rights Act 1998 should go in interpreting Convention rights beyond the existing case law of the European Court of Human Rights.

Held

Appeal dismissed; there was no violation of Article 3.

Ratio

• Under the Human Rights Act 1998, domestic courts should not interpret Convention rights more expansively than the European Court of Human Rights has done, or can confidently be expected to do; they may apply established principles to new facts, but should not themselves develop the law in a direction the Strasbourg court has not taken. Since Strasbourg treats the solitary confinement of juveniles as requiring a fact-specific assessment rather than as inherently contrary to Article 3, AB's treatment did not violate Article 3.

The judgments

Key reasoning

• The rights given effect by the Human Rights Act 1998 are the Convention rights as defined in international law, so their meaning is ultimately determined by the European Court of Human Rights, and domestic courts should not give them a meaning that departs from that court's case law.
• Going further than Strasbourg would allow domestic courts to impose obligations on public authorities that Parliament has not imposed and that the Convention has not been held to require, cutting across the constitutional balance of the Act.
• The Strasbourg case law on solitary confinement, including of young persons, assesses the conditions, duration, purpose and effects of the regime in each case; it does not treat any period of solitary confinement of a child as automatically inhuman or degrading.
• Rights more extensive than the Convention rights can be developed by the common law or by Parliament, and nothing in the Act prevents that.

Where it fits in the module

On the list for the Human Rights Act 1998, AB is the key authority on s 2 and the relationship between domestic courts and Strasbourg. It sits in the debate about whether the Act should be understood as incorporating international obligations, so that domestic courts follow Strasbourg, or as creating domestic rights that domestic courts may develop, and it ties into the revival of common law rights as the proper vehicle for going further.

Criticisms

• Section 2 requires courts only to take into account Strasbourg case law, so a rule that they should not go beyond it arguably adds a constraint the Act does not contain.
• The approach can leave vulnerable claimants, such as children in custody, without protection that domestic courts consider justified, until Strasbourg itself moves, and it reduces domestic input into the development of Convention law.
• In its favour, the approach respects the democratic limits of the Act, since rights that go beyond the Convention would impose obligations on public authorities that neither Parliament nor the Convention has imposed.