Supreme Court rules convicted terrorists illegally held in solitary confinement

President of the Supreme Court, Lord Neuberger, Deputy President Lady Hale, Lord Sumption, Lord Reed and Lord Hodge unanimously allowed the appeals of Kamel Bourgass and Tanvir Hussain.

The case turned on the question whether the decisions to keep the appellant prisoners in solitary confinement – also known as segregation – for substantial periods were taken lawfully.

The decisions were made under the Prison Act 1952, rule 45 of the Prison Rules 1999 and “PSO 1700”, a non-statutory document issued by the Secretary of State.

Rule 45, paragraph (1) enables the governor of the prison to arrange for the prisoner to be segregated. Paragraph (2) provides that the prisoner shall not be segregated under the rule for more than 72 hours “without the authority of the Secretary of State” and that “authority given under this paragraph shall be for a period not exceeding 14 days.”

The first appellant, Mr Bourgass, was segregated at HMP Whitemoor in April 2010 for seven months under rule 45(1), pending an investigation, after a prisoner who had previously attacked him was himself attacked.

Following authorisation of his continued segregation his lawyers began judicial review proceedings. The Secretary of State responded that Mr Bourgass was segregated, in addition, because he had been “intimidating other prisoners to change faith”. His confinement continued until his transfer to another prison in November 2010.

Mr Hussain s serving a life sentence in HMP Frankland. He was segregated for six months in April 2010 after an incident with another prisoner who was seriously injured. His period in solitary confinement for more than 72 hours was authorised under the above rules by various prison officers, including the residential governor on the basis of assault, backed by police and prison investigations.

His representatives began judicial review proceedings. The Secretary of State cited as grounds of defence the assault and risk to others as well as attempts to convert other prisoners to Islam – though the prison subsequently withdrew this allegation.

He was transferred to another prison in October 2010. The High Court and the Court of Appeal dismissed the applications for judicial review, which looked at procedural fairness.

Lord Reed, giving the judgment of the court, discerned two issues: whether the segregation was lawfully authorised, and whether the procedure followed met the requirements of fairness under the common law and, if applicable, article 6(1) of the European Convention on Human Rights.

On the first issue, the decisions taken under rule 45(2) were not taken by the Secretary of State, but by the senior prison officer or “operational manager” chairing the SRB, in accordance with PSO 1700. The argument was that the decision of the operational manager was the decision of the Secretary of the State, by virtue of the “Carltona principle”.

Under the Carltona principle, a decision of a departmental official is constitutionally the decision of the minister himself. However, the relationship between governors and other prison officers on the one hand, and the Secretary of State on the other, is the subject of specific legislation: this is not readily reconciled with the idea that prison governors and other officers are constitutionally indistinguishable from the Secretary of State.

Prison governors are the holders of an independent statutory office. In both the 1952 Act and the Rules there are provisions imposing duties specifically on the governor or prison officers and provisions that confer separate powers on the Secretary of State.

The judge said it was clear that the relationship between the governor, or his officers, and the Secretary of State bears no resemblance to the relationship between a minister and his officials. Neither can perform the functions properly belonging to the other.

Rule 45(2) is intended to provide a safeguard for the prisoner against excessively prolonged segregation by the local prison management. It can only operate as a safeguard if it ensures that segregation does not continue for a prolonged period without being considered by officials who are independent of the prison. It follows that the Carltona principle cannot apply to rule 45(2) so as to enable a governor to take the decision on the Secretary of State’s behalf.

Lord Reed went on to consider the two branches of the second issue, procedural fairness: first, the prisoner’s right to make representations and second, the scope of judicial review of decisions under rule 45(2), and its compatibility with article 6(1) ECHR.

Common law fairness requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken to authorise continued segregation. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought.

In the present cases, more could and should have been said. As to whether the decisions to authorise continued segregation fall within article 6(1), so that the prisoner is entitled to a hearing before an independent and impartial tribunal, this depends on whether the decision involves the determination of a civil right recognised by English law.

Lord Reed concluded that a prisoner does not possess any private law right to association, or any precisely defined entitlement as a matter of public law. Article 6(1) therefore does not apply. In any event judicial review could meet the requirements of article 6(1) in this context.