Prisoners have no right of association

Court Of Appeal

Published June 27, 2012

R (King) v Secretary of State for Justice

R (Bourgass and Another) v Same

Before Lord Justice Maurice Kay, Lord Justice Lloyd and Lord Justice Elias

Judgment March 27, 2012

There was no civil right derived from domestic and common law to associate with fellow prisoners so that an administrative decision to segregate or continue segregation of prisoners was not a determination of such a right under article 6 of the European Convention on Human Rights.

The Court of Appeal so stated, inter alia, when dismissing the appeals of (i) Ben King, a detainee in a Young Offender Institution, against a refusal of his application for judicial review by the Divisional Court (Lord Justice Pitchford and Mr Justice Maddison) (The Times March 8, 2011; [2011] 1 WLR 2667); and (ii) Kamel Bourgass and Tanvir Hussain, adult prisoners, against a refusal of their applications for judicial review by Mr Justice Irwin ([2011] EWHC 286 (Admin)).

All three appellants claimed that decisions to place and/or keep them in cellular confinement or segregation were unlawful, principally by reference to article 6 of the European Convention on Human Rights.

Article 6 of the Convention provides: “In the determination of his civil rights . . . everyone is entitled to a fair and public hearing . . . by an independent and impartial tribunal established by law . . .”

Ms Philippa Kaufmann, QC, for King; Mr Hugh Southey, QC, for Bourgass and Hussain; Mr Sam Grodzinski, QC, for the Secretary of State for Justice.

LORD JUSTICE MAURICE KAY said that the appellants had to establish the engagement of article 6 at the time of the decisions of the governor in King’s case and the segregation review boards in the cases of Bourgass and Hussain.

There was nothing in the authorities from the European Court of Human Rights at Strasbourg which required article 6 compliance at the stage of the administrative decision to segregate or to continue segregation. Nor did any domestic authority require anything amounting to it at that stage.

So far as article 6 was concerned, any non-engagement at the point of the administrative decisions might be because there was no established civil right or because there was, as yet, no dispute about one. There was plainly such a dispute when an application for judicial review was commenced but there was not one earlier than that.

The question whether there was a civil right of association with other prisoners was a difficult one. The Strasbourg cases did not unequivocally establish one as a matter of Convention law. They generally emphasised rights such as family visits.

Nor did the Young Offender Institution Rules 2000 (SI 2000 No 3371) or the Prison Rules 1999 (SI 1999 No 728) expressly confer a right to associate with other prisoners. The question therefore became: was there an implied right of association with other prisoners which amounted to a civil right?

The Divisional Court had found such a right primarily on the basis of the legal effect of a custodial sentence.

The correct analysis was to see association with other prisoners as a normal privilege rather than a right and that it was subject to withdrawal in accordance with the rules, particularly those permitting cellular confinement or segregation, which invested governors with discretionary powers.

The exercise of those powers and the process of review by the segregation review boards were amenable to judicial review which, among other things, would secure Convention rights.

The Strasbourg authorities were not inimical to that analysis. The review was one best entrusted to those with the necessary experience and expertise as an exercise of collective, professional discretion, with built in safeguards, albeit falling short of article 6 standards. Amenability to judicial review was appropriate protection.

For all those reasons, his Lordship considered that article 6 was not engaged at the stages of the governor’s or the segregation review boards’ decisions.

Even if article 6 were engaged, notwithstanding the absence of the elements of independence and impartiality, in the article 6 sense, within the prison, the procedure as a whole was article 6 compliant on a “full jurisdiction” basis, given the safeguard of judicial review.

Lord Justice Lloyd agreed.

Lord Justice Elias, while disagreeing that article 6 rights were not engaged, concurred in the result.

Solicitors: Irwin Mitchell LLP; Birnberg Peirce and Partners; Treasury Solicitor.