Shahid v Scottish Ministers (Scotland) [2015] UKSC 58

A prisoner convicted of a racially-aggravated murder was held in solitary confinement for 56 months for his own protection. The Supreme Court held his segregation breached prison rules and violated article 8 ECHR, though not article 3.

Facts

The appellant was convicted in November 2006 of the racially-aggravated abduction and murder of a 15-year-old boy. Owing to the notoriety of the crime and persistent intelligence indicating threats from other prisoners, he was held in segregation under rule 94 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (and its 1994 predecessor) for a total of 56 months between October 2005 and August 2010, save for a short period during his trial when he was held in mainstream conditions.

Rule 94(1) empowered the governor to order segregation for up to 72 hours. Continued segregation required written authority of the Scottish Ministers granted before expiry of that 72-hour period (rule 94(5)), with monthly renewals under rule 94(6). On three occasions, authority under rule 94(5) was granted after the 72 hours had expired, and 11 monthly renewals were granted late, each purportedly backdated. Many decisions to segregate or to apply for renewal appeared to give effect to decisions of a non-statutory body, the Executive Committee for the Management of Difficult Prisoners (ECMDP).

The appellant sought declarators that his segregation breached the Prison Rules and violated his rights under articles 3 and 8 ECHR, together with damages under section 8 of the Human Rights Act 1998.

Issues

• Whether late authorisations under rule 94(5) and late renewals under rule 94(6) were valid.
• Whether the conditions and duration of segregation breached article 3 ECHR.
• Whether the segregation was “in accordance with the law” and proportionate under article 8 ECHR, particularly given the role of the ECMDP.
• What remedy, if any, should be granted.

Arguments

Appellant

Late authorisations and renewals were invalid on the plain wording of rule 94, rendering approximately 32 months of segregation unauthorised. The protections under the Prison Rules were ineffective in practice because reasons for segregation were formulaic and real decision-making had been transferred to the ECMDP, a body with no statutory status. Segregation breached articles 3 and 8 ECHR.

Respondent

Lateness of authorisations did not affect validity, having regard to the overall purpose of the rules. The role of the ECMDP was advisory; local management retained the decision-making function. The conditions of segregation did not reach the article 3 threshold and any interference with article 8 was justified.

Judgment

Rule 94 time limits

Lord Reed (with whom the rest of the Court agreed) held that rule 94(5) plainly provided that segregation beyond 72 hours required authority granted prior to expiry of that period. Read with rule 94(6), which fixed the commencement of any authority at the expiry of the 72 hours, a late authority could have no effect. Purposive interpretation could not displace the plain and unambiguous statutory language, particularly as that language was consistent with the protective purpose of the rules, namely external review by Ministers within a short period (as previously recognised in Somerville v Scottish Ministers and Bourgass v Secretary of State for Justice). The R v Soneji line of authority concerned silent statutes and did not apply. Concerns that prisoners would have to be returned to mainstream conditions, possibly endangering safety, were answered by the overriding duty under section 6(1) of the Human Rights Act and articles 2 and 3 ECHR. The three late authorisations were invalid, and renewals dependent upon them were also invalid; approximately 14 months of segregation lacked lawful authorisation. Rule 94 itself, however, conferred no right to damages.

Article 3

Applying the Strasbourg jurisprudence (Ahmad v United Kingdom; Ramirez Sanchez v France), the Court concluded the minimum level of severity was not reached. The conditions were adequate, isolation was partial and relative, segregation was for the appellant’s own protection, his health was regularly monitored, and no severe or permanent injury was established.

Article 8

It was accepted that segregation interfered with article 8(1) rights and pursued the legitimate aim of protecting the appellant’s safety. However, the segregation was not “in accordance with the law” during the periods unsupported by valid authorisation under rule 94. Further, drawing inferences from the documentary record, the Court held that decisions to segregate and to apply for renewals had in significant respects not been taken by local governors in the exercise of their independent statutory judgment but rather implemented decisions of the ECMDP. Applying the principle in R v Deputy Governor of Parkhurst Prison, Ex p Hague and Leech v Deputy Governor of Parkhurst Prison, a statutory power must be exercised by the person on whom it is conferred. This was a further breach of domestic law and so a violation of article 8, even though no consequent prejudice was demonstrated.

On proportionality, the Court held a rigorous examination was required given the length of segregation. The reasons for segregation must become “increasingly detailed and compelling the more time goes by” (Ramirez Sanchez), reflecting the increasing risk of psychological harm noted by the UN Special Rapporteur, the CPT, and the Scottish Prison Service’s own guidance. No meaningful management plan was devised until 55 months had elapsed; alternatives such as transfer to other Scottish prisons, joining the co-accused, transfer elsewhere in the UK under Schedule 1 to the Crime (Sentences) Act 1997, or specialised supervision units were not seriously considered. The Ministers had not discharged their burden of showing the 56-month segregation was proportionate.

Just satisfaction

Applying section 8 of the Human Rights Act and the principles in Greenfield and Faulkner/Sturnham, and reflecting Strasbourg practice in cases such as Messina v Italy (No 2), the Court considered just satisfaction was afforded by declaratory orders and an award of costs. The appellant suffered no severe or permanent health injury, the practical interference with private life was limited, and he was not prejudiced by the procedural breaches as segregation would have continued in any event.

Implications

The decision reaffirms that statutory time limits protective of prisoners are to be given their plain meaning and cannot be circumvented by purposive interpretation where the legislation itself spells out the consequences of non-compliance. It also reinforces the orthodox administrative law principle that statutory powers must be exercised by the designated decision-maker, and that non-statutory committees cannot effectively dictate decisions reserved to local governors. The judgment provides important guidance on prolonged segregation and article 8, emphasising that the longer segregation continues, the stronger the justification required and the more rigorous the consideration of alternatives must be. Where segregation is necessary for the safety of vulnerable prisoners, prison authorities must actively develop management plans, consider transfers (including across the United Kingdom under the Crime (Sentences) Act 1997), and avoid open-ended segregation without meaningful review. The decision applies to the 1994 and 2006 Rules; the 2011 Rules are differently worded and were not in issue. The Court did not award damages, indicating that declaratory relief and costs may suffice where procedural breaches cause no demonstrable prejudice. The case is significant for prison administration, public law decision-making, and the protection of Convention rights of segregated prisoners.

Verdict: Appeal allowed. The Court granted declarators that the appellant was segregated without lawful authority during three specified periods and that the circumstances of his segregation violated his Convention rights under article 8. The appellant was awarded the costs of the appeal, with submissions invited on expenses below. No award of damages was made.

Source: Shahid v Scottish Ministers (Scotland) [2015] UKSC 58