In R (on the application of AB) v Secretary of State for Justice, the teenage Appellant was sentenced for imprisonment at the Feltham Young Offenders’ Institution. Due to his problematic behaviour and the potential threats posed to the officers and himself, he was subject to solitary confinement.

The Appellant argued that ‘solitary confinement’ of a person under 18 is automatically a breach of Article 3 of the European Convention of Human Rights (‘ECHR’), which prohibits inhuman or degrading treatment or punishment. Alternatively, the Appellant contended that the same is always a breach of Article 3 unless there exist ‘exceptional’ circumstances in which such treatment is ‘strictly necessary’.

The Supreme Court held that the Human Rights Act 1998 (‘HRA’), which adopts the ECHR, does not ‘enlarge the rights or remedies’ available under the ECHR, ‘but [enables] those rights and remedies to be asserted and enforced by the domestic courts and not only by recourse to Strasbourg’. Therefore, the Court limited itself to applying the Strasbourg jurisprudence, ‘no more and no less’.

The general approach of the ECtHR – for determining the existence of any ill-treatment in breach of Article 3 ECHR – depends closely on the circumstances of each individual case. Given this, the Court rejected the Appellant’s contention of ‘automatic’ infringement. The Court also rejected the Appellant’s alternative argument, because the ECtHR’s jurisprudence has never applied a ‘strict necessity’ test in relation to solitary confinement.

The Court’s approach towards ECtHR’s jurisprudence

The strive for ‘no more and less’ adherence in this case is dubious, because the Court also endorsed its previous unanimous ruling in Manchester City Council v Pinnock. In this case, the Court held that UK courts may deviate from Strasbourg jurisprudence if its ‘reasoning…appear[s] to overlook or misunderstand some argument or point of principle’.

Thus, the ‘overlooking’ – in Pinnock’s terminology – of some arguments by the existing Strasbourg jurisprudence would arguably justify UK courts’ departure from the ECtHR approach. In the absence of any Strasbourg case specifically on applying Article 3 ECHR to underaged solitary detainees (as noted by the Court itself), the Strasbourg jurisprudence has not yet considered arguments based on the UN General Comments No 10 and No 24 on the interpretation of the United Nations Convention on the Rights of the Child (‘UNCRC’), which prohibits solitary confinement of persons under 18 in all circumstances. Additionally, the Appellant raised medical and penological arguments against the same.

However, the Court merely held that these UN materials are not binding on the ECtHR (and the dualist UK, as the ratifiedUNCRC has not been domestically incorporated), and its task under the HRA is to follow the existing Strasbourg jurisprudence. The latter aspect also overlooks Pinnock’s ruling that ‘section 2 of the HRA requires our courts to “take into account” EurCtHR decisions, not necessarily to follow them’. The UN materials are just as non-binding as the limited Strasbourg jurisprudence in the present case.

Further, the rationale offered by the Court for the ‘no more and less’ adherence is also confusing. Beyond the HRA’s purpose of introducing a domestic enforcement mechanism for the ECHR, the Court identified an ‘additional rationale’ for not going further than the existing Strasbourg jurisprudence. If the national court interprets the ECHR too generously, the member state would have no right to appeal to the ECtHR to have the wrong interpretation ‘corrected’. In contrast, the aggrieved individual can appeal to the ECtHR.

This rationale is not entirely convincing. First, going further by anticipating future Strasbourg development can save the Appellant from the trouble of going to the ECtHR. This then conforms with the intended purpose of the HRA in allowing domestic enforcement of the ECHR without recourse to Strasbourg. Even worse, the ECtHR may not have a chance to consider the issue if it is never brought by anyone, which halts the development of the law.

Second, the consequence of wrong anticipation leading to the member state’s inability to correct the error is overstated. The legislature – if it finds the national court’s ruling to be utterly unacceptable – can enact a new statute to correct it by reason of parliamentary sovereignty. Furthermore, the correctness of the anticipation will obviously be known only when the ECtHR has rendered a ruling. At that time, the national court can simply then adopt the new Strasbourg case and overrule its wrong anticipation.