R (on the application of Bourgass & Anor) v Secretary of State for Justice [2015] UKSC 54

Two high-security prisoners were held in solitary confinement for months under rule 45 of the Prison Rules 1999, with continued segregation authorised by prison operational managers. The Supreme Court held this segregation was unlawful, as only the Secretary of State, acting through officials external to the prison, could authorise it.

Facts

The appellants, Kamel Bourgass and Tanvir Hussain, were prisoners held in high security prisons (HMP Whitemoor and HMP Frankland respectively), both serving life sentences in connection with terrorist-related offences. Bourgass was placed in segregation under rule 45 of the Prison Rules 1999 in March 2010 following an incident in which he was assaulted, and remained in segregation almost continuously for around seven and a half months until transferred to another prison. Hussain was segregated in April 2010 following an alleged assault on another prisoner, and remained segregated for nearly six months until transferred.

In both cases, segregation was continued on a fortnightly basis by Segregation Review Boards (SRBs) chaired by senior prison officers (described as ‘operational managers’ or ‘governors’) pursuant to Prison Service Order 1700 (‘the PSO’), a non-statutory document. The reasons given to the prisoners for continued segregation were repeatedly brief, generic and sometimes shifting (e.g. ‘pending investigation’, ‘risk to other prisoners’, ‘pending CSC referral’, ‘pending transfer’). Detailed allegations and underlying evidence were only disclosed in later judicial review proceedings.

Issues

The principal issues before the Supreme Court were:

• Whether the appellants’ continued segregation beyond the initial 72-hour period was duly authorised under rule 45(2) of the Prison Rules 1999, given that authorisation was given by prison operational managers rather than by the Secretary of State or officials external to the prison;
• Whether the procedure followed met the requirements of procedural fairness at common law, particularly as regards the right to make representations and to be informed of the substance of the case for continued segregation; and
• Whether such decisions engaged article 6.1 of the European Convention on Human Rights, and if so, whether judicial review was a sufficient remedy.

Arguments

Appellants

The appellants argued that rule 45(2) required authorisation by the Secretary of State, and that a prison operational manager could not lawfully give such authority. They submitted that fairness required the prisoner to be provided with sufficient information about the reasons for and evidence underpinning continued segregation to enable meaningful representations to be made, subject to appropriate redaction. They further argued that decisions to continue segregation engaged article 6.1.

Respondent

The Secretary of State argued that the operational manager’s decision could be treated as the decision of the Secretary of State by virtue of the Carltona principle, or alternatively that ‘the Secretary of State’ in rule 45(2) should be construed as including prison governors and senior officers. It was accepted that prisoners should usually have an opportunity to make representations and be given the ‘gist’ of reasons, though disclosure could be limited by security and other countervailing concerns. The Secretary of State contended that article 6.1 was not engaged.

Judgment

Authorisation under rule 45(2)

Lord Reed (with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agreed) held that the segregation of the appellants beyond the initial 72-hour period was not lawfully authorised. The Carltona principle, that decisions taken by departmental officials are constitutionally the decisions of the minister, did not apply to prison governors or officers. Prison governors are not departmental officials but holders of an independent statutory office under the Prison Act 1952, with specific powers and duties distinct from those of the Secretary of State. This was supported by the structure of the 1952 Act and the Prison Rules, which carefully differentiate the functions of governors and the Secretary of State, and by authority including Leech v Deputy Governor of Parkhurst Prison, R v Deputy Governor of Parkhurst Prison, Ex p Hague, and Somerville v Scottish Ministers.

The Court held that rule 45(2) provides a safeguard for the prisoner: while the governor may order initial segregation, prolonged segregation requires authorisation by officials independent of the management of the prison. The Secretary of State’s purported delegation of this function to the chairman of the SRB through the PSO was therefore unlawful. The alternative construction, that the phrase ‘the Secretary of State’ included prison governors, would defeat the protective purpose of the rule.

Procedural fairness

Although the conclusion on authorisation was determinative, the Court addressed the issue of procedural fairness given its general importance. Applying the approach in R v Secretary of State for the Home Department, Ex p Doody and R (Osborn) v Parole Board, the Court held that a prisoner must normally be given a reasonable opportunity to make representations before continued segregation is authorised, and must be informed of the substance of the matters on the basis of which authority is sought, in sufficient detail to enable a meaningful response. The reasons given to both appellants were inadequate, providing at best only a general idea of the prison authorities’ concerns. The Court of Appeal’s earlier decision in Hague on this point could not be sustained. Disclosure could, however, properly be limited where necessary to protect safety, security or other overriding interests, in which case disclosure of the ‘gist’ would suffice.

Article 6.1 ECHR

The Court held that decisions to authorise continued segregation did not engage article 6.1, as a prisoner has no precisely defined right in domestic law to associate with other prisoners; the extent of association is dependent on the exercise of judgment by the prison authorities. This was consistent with Hague and with the Grand Chamber decision in Boulois v Luxembourg. In any event, judicial review would provide an adequate remedy meeting the requirements of article 6.1 in this context, since rule 45(2) decisions do not normally turn on disputed questions of fact, and judicial review provides sufficient scrutiny of evaluative judgments, with the intensity of review calibrated to the seriousness of the interests at stake.

Implications

The judgment establishes that authorisation under rule 45(2) for continued segregation beyond 72 hours must be given by an official external to the prison and cannot be given by a prison governor or operational manager via the Carltona principle. This is grounded in the protective rationale of the rule and the distinct constitutional status of prison governors as independent statutory office-holders rather than departmental officials.

The decision also clarifies the procedural fairness requirements applicable to segregation decisions: prisoners must normally be given a meaningful opportunity to make representations, and the substance of the reasons for seeking continued segregation must be communicated in sufficient detail, subject to legitimate redaction for security or safety. As Lord Reed observed, the imposition of prolonged solitary confinement on the basis of effectively secret and unchallengeable allegations is unacceptable.

The judgment is of practical significance to the Prison Service, prison law practitioners, prisoners and those concerned with prison administration. It is grounded in well-documented evidence about the serious mental health risks of prolonged solitary confinement, reflected in reports of the UN Special Rapporteurs and the European Committee for the Prevention of Torture. The Court did not, however, suggest that segregation under rule 45 is unlawful in principle, nor did it set down a maximum permissible duration; the qualification of its reasoning is that the procedure must be properly authorised and procedurally fair. The article 6.1 aspect of the decision provides useful guidance on the limited circumstances in which Convention procedural protections will apply to internal prison management decisions, and confirms the flexibility of judicial review as a remedy in this context.

Verdict: The appeals were allowed. The Supreme Court granted a declaration in each case that the appellant’s segregation beyond the initial period of 72 hours was not authorised by the Secretary of State and was accordingly unlawful.

Source: R (on the application of Bourgass & Anor) v Secretary of State for Justice [2015] UKSC 54