Prison conditions - Removal from association

R (on the application of King) v Secretary of State for Justice; R (on the application of Bourgass and another) v Secretary of State for Justice: Court of Appeal, Civil Division (Lord Justices Maurice Kay, VP, Lloyd and Elias): 27 March 2012

The instant proceedings concerned two separate claims which were heard together as they raised common issues. The claimant in the first action, K, was serving a seven-year sentence in a young offender institute. He had imposed upon him a three-day period of cellular confinement following a disciplinary charge of failure to comply with a lawful order pursuant to rule 60 of the Young Offender Institution Rules 2000, SI 2000/3371 (YOI Rules). In the event, he returned to his normal routine after less than two days.

The first claimant in the second action, B, was serving a sentence of life imprisonment. He was twice subjected to segregation for reasons of good order and discipline pursuant to rule 45 of the Prison Rules 1999, SI 1999/728 (Prison Rules). Those periods of segregation were from March to April and from April until October or November. The second claimant in the second action, H, was also serving a long sentence. Following a serious attack on another prisoner, he was subjected to segregation also pursuant to rule 45. His segregation period was from April to October.

During their periods of segregation, B and H were regularly considered by segregation review boards (SRBs). All three claimants commenced proceedings for judicial review, contending that the decisions to place and/or keep them in cellular confinement or segregation had been unlawful pursuant to article 6 of the European Convention on Human Rights. All three applications were dismissed. The claimants appealed.

The issues for determination were, inter alia: (i) whether the claimants had had a 'civil right' pursuant to article 6 of the convention to associate with other prisoners, derived from provisions of domestic law (in particular the YOI Rules and the Prison Rules) that had been 'determined' by the proceedings in question; or, in the alternative (ii) whether the proceedings had determined the claimants' civil rights pursuant to article 6 on the basis that cellular confinement or segregation had interfered with their other rights under the convention, in particular articles 3 and 8. Consideration was given to the Human Rights Act 1998. The appeals would be dismissed.

(1) (Elias LJ dissenting) Nothing in the established authorities of the European Court of Human Rights required compliance with article 6 of the convention at the stage of the administrative decision to segregate or to continue segregation. Neither did any domestic authority require anything amounting to it at that stage. Any non-engagement of article 6 of the convention at the point of the administrative decisions might be because there was no established 'civil right' or because there was, at that time, no dispute, or contestation, about one. Plainly there was such a dispute when an application for judicial review was commenced but not earlier than that.

Association with other prisoners was a normal privilege rather than a right and it was subject to withdrawal in accordance with the YOI Rules and the Prison Rules, particularly those that permitted cellular confinement or segregation which invested governors with discretionary powers. The exercise of those powers and the process of review by the SRBs were amenable to judicial review which, among other things, would secure convention rights such as those under articles 3 and 8 (see [36], [37], [40], [76] of the judgment).

In the instant cases, article 6 of the convention had not been engaged at the stages of the governor's decision or the SRBs. It would have been unrealistic to have required the initial decisions to segregate to have been taken by an independent adjudicator. The need for action was often immediate in such circumstances. It was true that when the SRB stage was reached, whilst initially the timeline was short, the urgency was less extreme.

However, 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 the standards required by article 6 of the convention. Further, amenity to judicial review was the appropriate protection (see [44], [45], [76] of the judgment). R (on the application of A) v Croydon London Borough Council; R (on the application of M) v Lambeth London Borough Council [2010] 1 All ER 469 applied; Ali v Birmingham City Council [2010] 2 All ER 175 applied; Brady v United Kingdom [1979] 3 EHRR 297 considered; McFeeley v United Kingdom (Application 8317/78) [1980] 3 EHRR 161 considered; Ganci v Italy (Application No 41576/98) [2003] 41 EHRR 272 considered; Gulmez v Turkey (Application No 16330/02) [2008] ECHR 16330/02 considered; Enea v Italy (Application 74912/01) [2009] ECHR 74912/01 considered.

(2) Applying established principles to the instant proceedings, none of the claimants had come close to establishing even a prima facie case under article 3 of the convention. In K's case, cellular confinement of three days had not, even arguably, engaged article 8 of the convention. The periods of segregation in B's and H's cases had probably engaged article 8 of the convention at some point. However, applying established law, the total segregation had been justified. There had been no breach of B's or H's rights under article 8 of the convention.

Further, the instant proceedings were concerned with administrative decision making in a specific context which might lead to a subsequent challenge in judicial proceedings in the Administrative Court. Neither the governor, in K's case, nor the SRBs in the cases of B and H, had been determining a dispute about whether the claimants' rights under the convention had been violated.

The governor and SRBs had been obliged, pursuant to section 7 of the 1998 act, to ensure that those decisions had not breached the claimants' convention rights, but that had not transformed the processes with which they had been concerned into determinations of disputes about the claimants' convention rights (see [50], [51], [53], [56], [76] of the judgment).

R (on the application of Munjaz) v Mersey Care NHS Trust [2006] 4 All ER 736 applied; RB (Algeria) v Secretary of State for the Home Department; U (Algeria) v same; Othman v same [2009] 4 All ER 1045 applied; S (children: care plan), Re; Re W (children: care plan) [2002] 2 All ER 192 considered; R (on the application of Smith) v Parole Board; R (on the application of West) v Parole Board [2005] 1 All ER 755 considered; A v United Kingdom (Application 3455/05) 26 BHRC 1 considered; Secretary of State for the Home Department v AF [2009] 3 All ER 643 considered; Secretary of State for the Home Department v BC [2009] EWHC 2927 (Admin) considered; R (on the application of Bary) v Secretary of State for Justice [2010] All ER (D) 195 (Mar) considered; Maftah v Secretary of State for the Foreign Office and Commonwealth Affairs [2011] All ER (D) 120 (Apr) considered; Hassan v Secretary of State for Justice [2011] All ER (D) 12 (Jun) considered. Decision of the Divisional Court [2011] 3 All ER 776 affirmed on other grounds. Decision of Irwin J [2011] All ER (D) 207 (Feb) affirmed on other grounds.

Philippa Kaufmann QC (instructed by Irwin Mitchell LLP) for K; Hugh Southey QC (instructed by Birnberg Peirce & Partners) for B and H; Sam Grodzinski QC (instructed by the Treasury solicitor) for the secretary of state.