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United Kingdom Supreme Court
You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Shahid v Scottish Ministers (Scotland)  UKSC 58 (14 October 2015)
Cite as: 2015 SLT 707,  AC 429,  UKSC 58,  WLR(D) 409, 2016 SC (UKSC) 1,  3 WLR 1003,  4 All ER 363
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 UKSC 58
On appeal from:  CSIH 18A
Shahid (Appellant) v Scottish Ministers (Respondent) (Scotland)
Lord Neuberger, President
Lady Hale, Deputy President
JUDGMENT GIVEN ON
Heard on 18 February 2015
Kenny McBrearty QC
(Instructed by Taylor & Kelly)
Gerry Moynihan QC
(Instructed by Scottish Government Legal Directorate Litigation Division)
LORD REED: (with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree)
The Prison Rules
"(1) Where it appears to the Governor desirable for the purpose of -
(a) maintaining good order or discipline;
(b) protecting the interests of any prisoner; or
(c) ensuring the safety of other persons,
the Governor may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity."
The governor is required by rule 94(4) to specify in the order the reasons why it is made and to record in the order the date and time it is made. He is also required to explain to the prisoner the reasons why the order is made and provide the prisoner with a copy of the order.
"(5) A prisoner who has been removed from association generally or during any period that the prisoner is engaged in or taking part in a prescribed activity by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours."
"(6) An authority granted by the Scottish Ministers under paragraph (5) shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the Governor, renew the authority for further periods of one month commencing from the expiry of the previous authority."
The non-observance of time limits
"A prisoner ... shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours."
The words "shall not be subject to such removal ... except" mean that what follows is a pre-condition to lawful segregation for a period in excess of 72 hours from the time of the order. The words "have granted ... prior to the expiry of the said period" mean that, in order for the condition to be satisfied, authority must have been granted before the 72 hour period expires.
Article 3 of the ECHR
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
On behalf of the appellant, it was submitted that his segregation violated that guarantee.
"207. ... Solitary confinement is one of the most serious measures which can be imposed within a prison and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. Indeed, as the Committee's most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is.
208. At the same time, however, the court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. In many states parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners.
209. Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.
210. In applying these criteria, the court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for article 3. The court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely"
Article 8 of the ECHR
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
"In accordance with the law"
"1. To manage the location, movement and progression of all prisoners ... held out of association for three months or more under rule 80 of the [1994 Rules, and]
2. To monitor the provision of appropriate accommodation and regimes for difficult prisoners ..."
The guidance on segregation issued by the SPS in November 2006 states:
"ECMDP also carry out an important corporate monitoring role of the rule 94 process. The membership of the above committee comprises senior managers from all mainstream establishments and its role is to consider the management of difficult prisoners, some of whom are held for lengthy periods of time on rule 94 conditions. The committee regularly reviews the progress of such prisoners and at times recommends action to assist with the progress and re-integration of difficult prisoners to mainstream conditions."
According to a report by the Scottish Public Services Ombudsman on the appellant's case, to which it will be necessary to return, the ECMDP determines where such prisoners are to be held, and is accountable to the SPS Director of Custody, who has executive authority for the placement of all prisoners held out of association for three months or more under rule 94 and for the management policy applicable to them.
"Given that solitary confinement is a serious restriction of a prisoner's rights which involves inherent risks to the prisoner, the level of actual or potential harm must be at least equally serious and uniquely capable of being addressed by this means. This is reflected, for example, in most countries having solitary confinement as a sanction only for the most serious disciplinary offences, but the principle must be respected in all uses of the measure. The longer the measure is continued, the stronger must be the reason for it and the more must be done to ensure that it achieves its purpose." (para 55)
"It has been convincingly documented on numerous occasions that solitary confinement may cause serious psychological and sometimes physiological ill effects. Research suggests that between one third and as many as 90% of prisoners experience adverse symptoms in solitary confinement. A long list of symptoms ranging from insomnia and confusion to hallucinations and psychosis has been documented. Negative health effects can occur after only a few days in solitary confinement, and the health risks rise with each additional day spent in such conditions."
"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 & Friedman (1986) stated that, 'Whilst a term in 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 study reported that the prisoners became hypersensitive to noises and smells and that many suffered from several types of perceptual distortions (eg hearing voices, hallucinations and paranoia)."
The risks involved in prolonged segregation are also acknowledged by the SPS. The guidance document issued in November 2006, referred to earlier, states that "there should be awareness of the impact that segregation may have on a prisoner's mental health". It states that it is an established principle that segregation should be used sparingly and for the minimum time necessary, in order to protect the physical and mental health of segregated prisoners.