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You are here: BAILII >> Databases >> United Kingdom Supreme Court >> Bourgass & Anor, R (on the application of) v Secretary of State for Justice (Rev 2) [2015] UKSC 54 (29 July 2015) URL: https://www.bailii.org/uk/cases/UKSC/2015/54.html Cite as: [2015] 3 WLR 457, [2015] UKSC 54, [2016] AC 384 |
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Trinity Term
[2015] UKSC 54
On appeal from: [2012] EWCA Civ 376
R (on the application of Bourgass and another) (Appellants) v Secretary of State for Justice (Respondent)
before
Lord Neuberger, President
Lady Hale, Deputy President
Lord Sumption
Lord Reed
Lord Hodge
JUDGMENT GIVEN ON
Heard on 16 and 17 February 2015
Appellants Dinah Rose QC Dan Squires (Instructed by Birnberg Peirce and Partners) |
Respondent Sam Grodzinski QC David Lowe (Instructed by Government Legal Department) |
|
Intervener (The Howard League for Penal Reform) Edward Fitzgerald QC Martha Spurrier (Instructed by Clifford Chance LLP) |
LORD REED: (with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree)
The first appellant: the history of events
The conditions of the first appellant's segregation
The second appellant: the history of events
The conditions of the second appellant's segregation
The effects of segregation
"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)."
"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."
Was the segregation duly authorised?
Rule 45
"(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 ..."
PSO 1700
"The Review Board decides, after considering all of the factors detailed in section 2 [the part of the PSO headed 'What the Review Board should consider'], whether or not to authorise segregation to continue for a certain period of time (up to the maximum of 14 days). The operational manager chairing the Board has the final authority as to whether to authorise continuation of segregation under rule 45 (YOI rule 49) and must sign the relevant part of the form Segregation Review Board - Governor's Continued Authority for Segregation."
It is common ground that the PSO thus purports to confer on a member of the staff of the prison, namely the operational manager chairing the SRB, the power to authorise the continued segregation of a prisoner after the initial 72 hours ordered by the governor.
The Carltona principle
"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them. To take the example of the present case no doubt there have been thousands of requisitions in this country by individual ministries. It cannot be supposed that this regulation meant that, in each case, the minister in person should direct his mind to the matter. The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority, and, if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament. The whole system of departmental organisation and administration is based on the view that ministers, being responsible to Parliament, will see that important duties are committed to experienced officials. If they do not do that, Parliament is the place where complaint must be made against them."
"I think this contention is based on a misconception of the relationship between a minister and the officials in his department. A minister must perforce, from the necessity of the case, act through his departmental officials, and where as in the Defence Regulations now under consideration functions are expressed to be committed to a minister, those functions must, as a matter of necessary implication, be exercisable by the minister either personally or through his departmental officials; and acts done in exercise of those functions are equally acts of the minister whether they are done by him personally, or through his departmental officials, as in practice, except in matters of the very first importance, they almost invariably would be done. No question of agency or delegation ... seems to me to arise at all."
The legislative framework
"(2) Officers of the Secretary of State duly authorised in that behalf shall visit all prisons and examine the state of buildings, the conduct of officers, the treatment and conduct of prisoners and all other matters concerning the management of prisons and shall ensure that the provisions of this Act and of any rules made under this Act are duly complied with.
(3) The Secretary of State and his officers may exercise all powers and jurisdiction exercisable at common law, by Act of Parliament, or by charter by visiting justices of a prison."
"(1) Every prison shall have a governor, a chaplain and such other officers as may be necessary.
…
(3) A prison which in the opinion of the Secretary of State is large enough to require it may have a deputy governor ..."
The implication is that a prison has only one "governor" within the meaning of the 1952 Act.
"Every prisoner shall be deemed to be in the legal custody of the governor of the prison."
Other sections confer powers or impose duties specifically upon the governor or prison officers. Examples include sections 16A and 16B, which empower the governor to authorise the testing of prisoners for drugs and alcohol, and empower prison officers to carry out such testing in accordance with the authorisation. Provisions such as these can be contrasted with other provisions conferring powers or imposing duties upon the Secretary of State, generally of wider scope, or of a supervisory nature. There are also provisions which confer separate and overlapping powers on the governor and on the Secretary of State, such as sections 40A to 40E.
"The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres and for the classification, treatment, employment, discipline and control of persons required to be detained therein."
It was under section 47(1) that the Rules were made.
The case law
"The governor of a prison holds an office created by the Act of 1952 and exercises certain powers under rules 47 to 55 of the Rules of 1964 [the disciplinary provisions then in force] which are conferred upon him and him alone."
Lord Bridge went on to address the reasoning in an earlier decision of the Court of Appeal, which had distinguished between prison governors and boards of visitors on the basis that governors were servants or agents of the Secretary of State:
"A prison governor may in general terms be aptly described as the servant of the Secretary of State, but he is not acting as such when adjudicating upon a charge of a disciplinary offence. He is then exercising the independent power conferred on him by the rules. The Secretary of State has no authority to direct the governor, any more than the board of visitors, as to how to adjudicate on a particular charge or what punishment should be awarded. If a Home Office official sought to stand behind the governor at a disciplinary hearing and tell him what to do, the governor would properly send him packing." (p 563)
"The starting point of the inquiry appears to me to be that the prison governor is not a mere servant or alter ego of the Secretary of State but a statutory officer performing statutory duties. Many of those duties are of a purely administrative nature and involve no adjudicatory function at all." (p 578)
"Whether or not the Secretary of State retains an overall power to segregate a prisoner, he cannot, in my judgment, exercise it under rule 43 because that rule gives powers specifically to the governor. Rule 43(2) provides for authority to be given to the governor to segregate for more than 24 hours by either a visitor or the Secretary of State. But that authority is merely clothing for the governor. The decision 'under this rule' is still his. I do not accept, therefore, that the Secretary of State can act under rule 43 to initiate segregation."
Taylor LJ went on to explain the fact that the Secretary of State's authority was required as a safeguard provided to protect the prisoner's rights (p 110).
"Whoever is acting as governor for the purposes of rule 80 at the relevant time is exercising a distinct function, or distinct functions, which cannot be carried out by the Scottish Ministers. ... Under rule 80 of the Scottish Prison Rules, the Scottish Ministers have their own distinct functions. The division between the role of the governor and the role of the Ministers is indeed essential if the protections for prisoners contained in the rule are to be effective. It follows that the familiar principle in Carltona Ltd v Comrs of Works [1943] 2 All ER 560 has no application to what the governor does under rule 80."
The Carltona principle, statutory construction and rule 45
Procedural fairness
Representations and the provision of information
Judicial review and article 6.1
"The court may not create by way of interpretation of article 6(1) a substantive right which has no legal basis in the state concerned. The starting-point must be the provisions of the relevant domestic law and their interpretation by the domestic courts. This court would need strong reasons to differ from the conclusions reached by the superior national courts by finding, contrary to their view, that there was arguably a right recognised by domestic law."
"The concept of the prisoner's 'residual liberty' as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another." (p 163)
Lord Jauncey also rejected the idea of a residual liberty, and added that, absent a deliberate abuse of power, in which event there would be a cause of action for misfeasance in public office, it followed that the prisoner's only judicial recourse for segregation in breach of the Prison Rules was to the public law remedies applicable to administrative action (p 173). The other members of the House agreed.
Conclusion