Segregation of prisoner was ‘unlawful’ and breached his human rights, UK Supreme Court rules

Five justices unanimously allowed an appeal by Imran Shahid, who was convicted in 2006 along with two co-accused of the racially-aggravated abduction and murder of a 15-year-old boy in Glasgow.

The court granted a declarator that the appellant was segregated unlawfully during three separate periods totalling 14 months, and that his rights under article 8 of the European Convention on Human Rights were violated.

President of the Supreme Court Lord Neuberger, Deputy President Lady Hale, Lord Sumption, Lord Reed and Lord Hodge heard that the appellant was sentenced to life imprisonment with a punishment period of 25 years after being found guilty of the “appalling” murder of Kriss Donald, who was selected at random and abducted from a public street, repeatedly stabbed, and set alight with petrol.

The appellant was segregated pursuant to the Prisons and Young Offenders Institution (Scotland) Rules 1994 and the subsequent Prisons and Young Offenders Institution (Scotland) Rules 2006, the relevant provisions of which are identical.

It was considered that the appellant and his co-accused were “liable to attack” by other prisoners, and there were “persistent fears for their safety” if accommodated in mainstream conditions.

Rule 94 of the 2006 rules permit a Governor to authorise segregation for up to 72 hours for the purpose of “maintaining good order or discipline”, “protecting the interests of any prisoner”, or “ensuring the safety of other persons”.

Segregation beyond 72 hours for a further month must be authorised by the Scottish Ministers, “prior to the expiry of the said period of 72 hours”, on the application of a Governor.

The Scottish Ministers may renew the authority for further monthly periods, again on the application of a Governor.

Apart from a period immediately prior to and during his trial, the appellant remained in continuous segregation until 13 August 2010. Altogether he spent 56 months in segregation.

The appellant sought orders declaring that certain periods of his segregation were in breach of the relevant Prison Rules, and that his segregation violated the article 3 ECHR prohibition against “torture, inhuman and degrading treatment”, and article 8 ECHR “right to respect for private life”.

His judicial review challenging the lawfulness of his segregation was refused by both the Outer House and the Inner House of the Court of Session.

The appellant therefore appealed to the Supreme Court, which unanimously allows the appeal, granting a declarator that the appellant was segregated unlawfully during three separate periods totalling 14 months; and that his article 8 rights were violated.

Giving the judgment of the court, Lord Reed – with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agreed – said: “On the facts of the present case, there were, as I have explained, three occasions when authority under rule 94(5) was purportedly granted after the 72 hour period had expired.

“No attempt has been made to rely upon the Human Rights Act as providing a lawful basis for the continuation of the appellant’s segregation on those occasions.

“In these circumstances, the only conclusion open is that the authority was invalid and, as such, was incapable of renewal.

“The consequence is that the appellant’s segregation during periods totalling about 14 months lacked authorisation under the rules.”

However, the justices held that the conditions of segregation and the measures imposed were not in themselves in breach of article 3.

The court observed that the appellant was placed in segregation in the interests of his “own safety”, and there was a “genuine and reasonable concern that he was at risk of serious injury or worse”.

The judges added that while the duration of his segregation was “undesirable”, and the conditions could have been improved, the appellant’s segregation did not attain the minimum level of severity required for a violation of article 3.

But the court did rule that the appellant’s segregation amounted to a disproportionate interference with his right to respect for private life under article 8(1), as no consideration was given to the possibility of transferring him to a prison elsewhere in the UK due to the lack of other potential accommodation options in Scotland.

Lord Reed said: “It is for the Ministers to establish that the appellant’s segregation for 56 months was proportionate. In my judgment, in the absence of any evidence that serious steps were taken by the SPS management to address the issues arising from his segregation until four-and-a-half years after it had begun, they have failed to do so.”