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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Bourgass & Anor, R (on the application of) v Secretary of State for Justice [2011] EWHC 286 (Admin) (18 February 2011) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2011/286.html Cite as: [2011] EWHC 286 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The Queen On the Application of (1) KAMEL BOURGASS (2) TANVIR HUSSAIN |
Claimant |
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- and - |
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SECRETARY OF STATE FOR JUSTICE |
Defendant |
____________________
Mr Sam Grodzinski (instructed by The Treasury Solicitors) for the Defendant
Hearing date: 5 November 2010
____________________
Crown Copyright ©
The Hon Mr Justice Irwin:
Introduction
"[1] Whether the procedure adopted when the Claimants were segregated, and following their segregation, amounted to a breach or breaches of Article 6 of the European Convention on Human Rights.
[2] Whether the procedure adopted in the case of the first Claimant Kamel Bourgass breached common law procedural fairness.
[3] Whether in relation to the second Claimant Tanvir Hussain the regime in the segregation unit was unlawful as constituting a breach of prison service policy and/or Article 6."
Factual Background – Kamel Bourgass
"MS…claims to have been bullied by Mr Bourgass, who had spread rumours about him and told fellow Muslim prisoners not to talk to him. This was supported by other intelligence [MS] stated he could not take it anymore so after confronting Mr Bourgass he assaulted him. CCTV supports this. The assault was out of character for [MS] who previous to this associated with Mr Bourgass almost daily (evidenced on Mr Bourgass's ABS log)."
"generally keeps himself to himself and rarely associates or speaks with non-Muslim prisoners other than to exchange simple greetings. When he talks with other Muslim prisoners the conversations are about mundane matters such as prayer times, which direction to face when praying, whose cell they should pray in together when the afternoon prayer times fall during association period and so forth."
The Claimant denies that he has ever sought to influence other prisoners in the way they follow their Muslim religion or otherwise.
"there are a number of entries in the wing observations book which indicate your behaviour amounts to bullying and intimidation of other prisoners. It would appear that you attempt to restrict other prisoners from availing themselves of all the facilities available on the wing. It would appear you attempt to influence the activities and behaviour of other prisoners. All of this information is from staff observations. The staff observation book is not a document which prisoners are allowed access to. There is therefore no documentation to show you."
Facts and Procedural Background – Tanvir Hussain
"…..took into account the very serious nature of the charge against the claimant, the severity of the physical attack and the fact that the attack appeared to have arisen as a result of a mundane disagreement with the victim over an item of food and the risk that …….the Claimant posed to other prisoners. I also gave serious consideration to the risks of violent physical attack upon Mr Hussain in …..possible reprisal from the victim….and his peers."
"I was and remain of the opinion that transfer to another wing or establishment would have the effect of simply moving the risk to another location rather than addressing it and allowing it to be safely managed."
"conditioning of other vulnerable segregated prisoners who are susceptible to manipulation due to specific mental health needs. Three such prisoners have advised Segregation Unit staff that they have changed religion from Christianity to Islam and that they have been converted through their cell windows by another prisoner."
"……is a potential (or actual) Claimant in judicial review proceedings and requires urgent contact with his lawyers in relation to matters connected …….."
The Claimant submitted daily applications to make calls to his solicitors both in relation to the judicial review proceedings and in relation to his then pending criminal appeal cases.
"Largely reserved for prisoners who have recently been violent towards staff, in order to avoid the need to accompany such prisoners up and down stairs".
"…..six times during the nearly two months since he was segregated on 25 April 2010. These visits have each lasted only about one hour and fifteen minutes. This is because of the length of time it takes to get through to the legal visits area……"
The Prison Rules
"45 Removal from association
(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly.
(2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period.
(3) The governor may arrange at his discretion for a prisoner removed under this rule to resume association with other prisoners at any time, and in exercising that discretion the governor must fully consider any recommendation that the prisoner resumes association on medical grounds made by a registered medical practitioner or registered nurse working within the prison.
(4) This rule shall not apply to a prisoner the subject of a direction given under rule 46(1)."
"Governors/directors must ensure that the restrictions on prisoners segregated under Prison Rule 45 (YOI 49) are no more than are necessary to protect the prisoner concerned or to maintain the good order or discipline of the establishment. The regime for segregated prisoners …..should be as full as possible and only those activities that involve associating with main stream prisoners should be curtailed. In-cell education or work that could be done in-cell …..should be encouraged. Access to activities such as domestic visits, legal visits, use of the telephone, canteen exercise and showers should be comparable to those for a prisoner held on normal location".
"Research into the mental health of prisoners held in solitary confinement indicates that for most prisoners there is a negative effect on their mental wellbeing and that in some cases the effects can be serious. A study by Grassian and Friedman (1986) stated that, whilst solitary confinement would be difficult for a well adjusted person, it can be almost unbearable for the poorly adjusted personality types often found in a prison."
The policy goes on to summarise the effect of European legal authority, the potential for segregation to give rise to self harm or other serious mental consequences, the importance of safeguarding and promoting the mental health of prisoners held in segregation, and at page 25 suggestions as to how establishments can set out to achieve that. One of the suggestions in this part of the policy document reads as follows:
"Keeping in touch – prisoners should be encouraged to keep in touch with their families and friends as they will be able to provide support through difficult periods. Establishments must ensure that prisoners in segregation are able to receive visits, use the telephone and write letters (with assistance where necessary)."
"Prisoners held in segregation for long continuous periods (e.g. 3 months or more). Such prisoners should be considered for assessment for a DSPD (Dangerous and Severe Personality Disorder) unit or CSC (close supervision centre). A particular review is required for prisoners undergoing continued segregation beyond the 3 month stage or 6 months if the prisoner is in the High Security Estate."
"If at any time an Independent Monitoring Board member has a serious objection to the continued segregation of a prisoner they should approach the duty governor to express their concerns. If this fails to result in a satisfactory and reasonable outcome the IMB member should follow the laid down procedures for IMB objection to continued segregation."
"A member of the Independent Monitoring Board should aim to attend Segregation Review Board …..their role is to:
(1) To monitor and oversee the decision making process.
(2) To be satisfied that the laid down procedures have been followed.
(3) To be satisfied that a reasonable decision has been reached by the Review Board. This is defined as reasons which are rational and understandable (this does not necessarily mean that the individual member must agree with the decision).
- Where it has not been possible for a member of the IMB to attend the Review Board they have a duty (as does the Governor to facilitate) to review the paperwork and interview the prisoner and where necessary members of the panel at the earliest opportunity afterwards……..
- If the representative does not think a decision of the Review Board is reasonable in the light of the circumstances known at the time and has been unable to resolve the matter satisfactorily with the operational manager chairing the Board then they must follow the procedures for IMB objection to continued segregation."
"(4) In-charge Governor/Director of the establishment. The in-charge Governor/Director will make a written response to the Board member as soon as possible and in any case within 24 hours. Both in-charge Governors/Directors and members of the Independent Monitoring Board should make every effort to resolve the situation at local level."
(5) If it has not been possible to resolve the issues raised in the formal objection, a copy of all the written paper work should be sent to the Regional Manager Custodial Services/DOM for consideration. The Regional Manager Custodial Services should arrange to meet the member of the IMB or discuss the case over the telephone and determine the action to take as quickly as possible and in any event within 5 working days.
(6) If the IMB are still concerned about a relevant decision then they have an obligation to bring it to the attention of the Chief Operating Officer of NOMS."
Evidence and Submissions Following the Hearing
(1) Where the segregation procedure relies to a significant extent on intelligence or other material that cannot be disclosed, is there an assessment of that material at fortnightly Segregation Review Board meetings?
(2) Is it normal practice for IMB members to be present when this assessment takes place?
(3) Is it normal practice for the prisoner to be present at Segregation Review Board meetings?
"Where prisoners are segregated under Prison Rule 45, the reasons for their segregation may be based wholly or in part on what can generically be described as "security information". All security information received in a prison establishment is assessed by specially trained staff in the Security Department and is graded according to the reliability of the source and of the information itself. Some of the security information will be ….highly sensitive. The disclosure of sensitive information beyond those who have a strict need to know it for operational reasons, can jeopardise the safety of the source of the information, the provision of future information and the security of the establishment and safety of those within it. Thus Segregation Review Boards are not invariably given full disclosure of all security information. Rather, where there is sensitive security information, a verbal gist of it will be given to the Board and the reliability of the information will be discussed."
"Sanitised information means that the source of the information is removed but the content and the meaning of the information is unaltered. All staff outside the Security Department are provided only with sanitised information on the basis that the integrity of intelligence gathering in prisons is predicated on confidentiality. However, there will be occasions that (sic) IMB members will have a legitimate need to know the source of the information and may make such a request where he/she feels it is necessary to do so as part of his overall function in scrutinising the segregation process".
"Only in cases where sensitive security was being discussed would he be excluded for part of the proceedings."
"it was a different IMB member each time and they just nodded their head and never said anything while he was present; only the governor spoke"
R (King) –v- Secretary of State for Justice 2010 EWHC2522 (Admin)
"….the extent of the "basic" association which the inmate will be entitled is, subject to the performance of his statutory duty, in the discretion of the Governor of the institution; but, in my view, the existence of that discretion does not remove from association its quality as a personal right. It is a right which is subject to the lawful exercise of discretion by the Governor. There can, it seems to me, be no doubt that a prisoner has a right of access to a court if he asserts the Governor has arbitrarily removed from him any association with those of his fellow inmates with whom he would normally enjoy joint activities. That right of access to the courts exists because association is one of those residual rights which the prisoner retains subject to the lawful exercise of disciplinary or other powers. This, I think, is the distinction between the case of a prisoner and the case of the discretionary recipient of a welfare or other benefit…..[this claimant] says that he had the same basic right of association with his fellow inmates as they enjoyed, subject to the lawful exercise of disciplinary power by the Governor. I accept that within the autonomous meaning afforded to "civil rights" by the European Court a right of association, in the sense I have described it, is a civil right."
The Court went on to decide that the supervisory review in the High Court of disciplinary proceedings before the Governor was, in that case, a sufficient guarantee of the fairness of the proceedings for the purpose of Article 6 (1). I return to that aspect of the decision below.
Claimants' submissions on law
"Apart from the urgency of decisions under Rule 43, there may well be other public policy grounds for not giving reasons in advance to the prisoner so as to enable him to make representations. Giving reasons would often require unwise disclosure of information. Such disclosure could reveal to prisoners the extent of the governors' knowledge about their activities. It could reveal the source of such information, thereby putting informants at risk. It could cause an immediate escalation of trouble." Page 109H to 110A.
The same line of reasoning is continued at 112B to F.
"for lawful confinement of the prisoner cannot possibly be read as subject to any implied term with respect to compliance with the Prison Rules 1964 and this is fatal to any submission which seeks to make the lawfulness of the imprisonment depend in any sense on such compliance"
See Lord Bridge page 163F.
"[The prisoner] is lawfully committed to a prison and while there is subject to the Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had no already lost when initially confined."
"the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast…the [decision making body in the instant case] was deciding a simple question of fact, namely whether there was a "good cause" for the applicants delay in making a claim."
The case of these claimants says Mr Southey was fundamentally based on a simple question of fact as to what they had done, requiring a straightforward Article 6 compliant resolution of the dispute in question.
"5. Any custodial order inevitably curtails the enjoyment, by the person confined of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all right enjoyed by other citizens. Some rights, perhaps in attenuated or qualified form, survive the making of the order. And it may be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."
Submissions of the Defendant
"In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact."
"The court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited…. above, the issues to be determined required a measure of professional knowledge or experience and the exercise of an administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the [Housing Benefit Review Board] was deciding a simple question of fact, namely whether there was 'good cause' for the applicant's delay in making a claim….. No specialist expertise was required to determine this issue, which is under the new system, determined by a non-specialist tribunal. Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgements of policy or expediency which was for the democratically accountable authority to take."
"A lack of independence and impartiality arising from no more than the organisational structure of the employment [cannot realistically be said to] infect the social workers' decisions so as to be incapable of cure by judicial review."
The second key conclusion is the observation, that confusion would be caused by hiving-off for some special treatment a factual issue which formed part of a decision requiring professional expertise or judgement. The court said that would not work.
Conclusions
Footnote