King & Ors, R (on the application of) v Secretary of State for Justice

These separate cases raise common issues of some importance concerning procedures relating to decisions to move prisoners or detainees from normal regimes to cellular confinement or segregation. Ben King is now aged 21. In April 2009, he was serving a seven year sentence in a Young Offender Institute (YOI) for causing death by dangerous driving. He was detained at HMP Portland. Between 11 and 13 April he was subjected to cellular confinement following a disciplinary charge of failure to comply with a lawful order. Kamel Bourgass and Tanvir Hussain are adult prisoners of some notoriety. Bourgass is serving a sentence of life imprisonment for the murder of a police officer and seventeen years’ imprisonment for conspiracy to commit public nuisance by the use of poisons and/or explosives (an offence which occurred in the course of “the Ricin plot”). In March 2010, whilst detained in HMP Whitemoor, he was subjected to segregation for reasons of good order and discipline pursuant to Prison Rule 45. He was segregated from 10 March until 22 April and again from 23 April until October or November of that year. Hussain, too, is serving a long sentence for terrorism-related offences. In April 2010, he was detained at HMP Frankland. On 24 April he was found to have carried out a serious attack on another prisoner. He was subjected to segregation pursuant to Prison Rule 45 until October 2010. During their periods of segregation, the cases of Bourgass and Hussain were regularly considered by Segregation Review Boards (SRBs).

In these proceedings, all three appellants claim that the decisions to place and/or keep them in cellular confinement or segregation were unlawful, principally (but not wholly) by reference to Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). In addition, Hussain claims that, whilst segregated, he was denied access to legal advice by telephone in breach of PSO1700. King’s application for judicial review was dismissed by the Divisional Court (Pitchford LJ and Maddison J) on 13 October 2010: [2010] EWHC 2522 (Admin). The applications on behalf of Bourgass and Hussain were dismissed by Irwin J on 18 February 2011: [2011] EWHC 286 (Admin).

The Young Offender Institution Rules 2000 were made pursuant to the power conferred upon the Secretary of State by section 47 of the Prison Act 1952. Disobeying a lawful order is an offence against discipline: rule 55(25). Where an inmate is to be charged with an offence against discipline, the charge must be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence. There are two forms of inquiry. In a case where a finding of guilt is of a seriousness which would justify an award of additional days, the Governor refers the matter to an independent adjudicator (in practice, a District Judge): rule 58A. There is also a discretion to refer to an independent adjudicator where it is “necessary or expedient for some other reason”: ibid. In all other cases, of which the case of King was one, the charge is inquired into by the Governor: rule 58(2). By rule 59, the inmate must be informed of the charge as soon as possible. At the inquiry, he must be given an opportunity of hearing what is alleged against him and of presenting his own case. There is a right to legal representation before an independent adjudicator but not before a Governor. Rule 60 lists the range of punishments at the disposal of a Governor. It includes:

Before deciding whether to impose cellular confinement, the Governor must enquire of a registered medical practitioner or registered nurse, working within the YOI, as to whether there are any medical reasons why the punishment is unsuitable and must take this into account when making his decision: rule 61(1). A cell used for confinement must be certified as suitable by an officer of the Secretary of State: rule 61(2).

The deployment of independent adjudicators was inserted into the Rules by amendment following the Strasbourg judgment in Ezeh and Connors [2004] 39 EHRR 1 which was concerned with the procedure required in relation to awards of additional days.

Section 47 of the Prison Act 1952 was also the source of the Prison Rules 1999. Segregation or, more properly, “removal from association” is governed by rule 45, which provides:

The powers of the Secretary of State pursuant to rule 45(2) are vested in Segregation Review Boards. Much of the relevant policy and provision is contained in Prison Service Order 1700. I shall have to return to PSO1700 in more detail later. At this stage, I simply record that it deals with, among other things, the constitution of SRBs.

By section 6 of the Prison Act 1952, the Secretary of State must appoint an Independent Monitoring Board (IMB) for each prison. It consists of members of the public who are wholly independent of the Secretary of State. PSO1700 does not require that a SRB includes a member of the IMB but, in practice such inclusion generally occurs, as it did in the cases of Bourgass and Hussain. IMBs are governed by Part V of the Prison Rules.

At the time of sentence in the Crown Court, King was assessed as suffering from an anti-social personality disorder with prominent mood instability. The commission of the offence of causing death by dangerous driving had also left him with post-traumatic stress disorder. Psychologists considered him to be psychopathic. His cellular confinement on 11 April 2009 was imposed for failure to comply with a lawful order. He had refused to come out of a shower/toilet cubicle when instructed to do so. His explanation was:

In answer to a question from the Governor, Mr Shepherd, he referred to his mental health provision and said “I am very disturbed.” Governor Shepherd caused him to be medically assessed in accordance with Rule 60(1)(f) and, having received medical advice that King could cope with a short period of cellular confinement, he imposed a punishment of three days’ confinement. In the event, King was returned to his normal routine after less than two days.

Bourgass had previously been held in HMP Wakefield where he had been considered to have influence over other prisoners and to be involved in bullying and intimidation. Similar traits were observed following his transfer to HMP Whitemoor. On 14 February 2010 he was placed on an anti-bullying regime. There was evidence that his response was not satisfactory. On 10 March he was involved in an incident with another prisoner, MS, in the course of which Bourgass was assaulted. MS claimed that that was the result of bullying by Bourgass. A Duty Governor decided to segregate Bourgass pursuant to Prison Rule 45 for reasons of good order and discipline. The segregation was reviewed by a Segregation Review Board pursuant to Prison Rule 45(2) and PSO1700 on 13 March, 23 March and 6 April. It was considered that Bourgass had been responsible for an escalation of violence in the Prison “for faith related reasons” and that his influence over other prisoners was a threat to good order and security.

Bourgass was removed from segregation on 22 April. On the following day someone (not Bourgass) attempted to murder MS. That morning, Bourgass had been seen on CCTV in conversation with the assailant and the prison authorities later received intelligence that Bourgass had been involved in organising the attack on MS in retaliation for the events of 10 March. The Segregation Unit Manager decided to renew Bourgass’ segregation. On 23 April, a member of the IMB was informed. On 26 April the SRB met to consider the case. Those present included a Governor, a member of the Healthcare Department, a member of the Mental Health Team, an IMB member and a senior officer from the Segregation Unit. The SRB found no evidence of reduced risk and decided that segregation should continue.

The next review was carried out by the SRB, similarly constituted, on 4 May. It was decided that Bourgass should be assessed for transfer to a Close Supervision Centre (CSC), a specialist unit for particularly dangerous or disruptive prisoners. Further SRBs were held on 18 May, 1 June, 15 June, 29 June, 13 July and 27 July. Bourgass chose not to attend them. On 2 June 2010 he commenced judicial review proceedings. On 27 July, he attended the SRB. On 7 September, the body considering transfer to a CSC decided against such a transfer but considered that he should be transferred out of Whitemoor to another High Security Prison. That was subsequently achieved without further segregation.

Whilst in HMP Frankland on 24 April 2010, Hussain carried out a serious assault on a prisoner in a cell. He used an object which he was able to direct prison officers to. He was immediately placed in the segregation unit. On 26 April a Disciplinary Adjudication took place. The Independent Adjudicator decided to refer the matter to the Police. On the same day, the Governor decided to keep Hussain segregated pursuant to Prison Rule 45 for the maintenance of good order and discipline. There were a number of concerns: the severity of the attack; the risk to other prisoners; the risk of reprisals; and intelligence reports suggesting that Hussain was involved in the conditioning of vulnerable prisoners who were susceptible to manipulation and that he preached extremist Islamic ideals through his cell window.

On 27 April the SRB, which was attended by a Governor, an IMB member and a member of the Chaplaincy, decided that the segregation should be maintained. Further reviews by the SRB were conducted on 5 May, 19 May, 2 June, 16 June, 30 June and 14 July. They were attended by at least one Governor, one IMB member, members of the Chaplaincy, members of the Mental Health Unit or the Psychology Unit and others. The Governor attending the SRB was not the one who had made the initial decision to segregate.

Whilst Hussain was in segregation, he was subjected to additional restrictions on his access to a telephone. He complains that this denied him his right of access to legal advice.

All three appellants challenge their cellular confinement or removal from association on procedural grounds, relying on Article 6 and/or Articles 3 and/or 8 of the ECHR. There is an alternative challenge, advanced particularly on behalf of Bourgass and Hussain, relating to procedural fairness at common law. In addition, Hussain complains about his access to the telephone for legal advice. In his skeleton argument on behalf of the Secretary of State, Mr Sam Grodzinski QC helpfully put the several issues into this logical structure:

Did the appellants have an Article 6 “civil right” to associate with other prisoners, derived from provision of domestic law, in particular the YOI Rules and the Prison Rules and the common law, that was “determined” by the proceedings in question?

Alternatively, did the proceedings determine the appellants’ Article 6 civil rights on the basis that cellular confinement or segregation interfered with their other ECHR rights, in particular Articles 3 and 8?

If the answer to 1) or 2) is in the affirmative, was the overall process by which the appellants’ civil rights were determined compliant with Article 6, in particular given the availability of judicial review to challenge the decisions of the Governors and the SRBs?

In the cases of Bourgass and Hussain, there are related issues of common law procedural fairness, including whether the decision of the Court of Appeal in R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58 remains good law.

In the case of Hussain, there is the discrete issue of the lawfulness of the level of access he was given to the telephone to make calls to his solicitor.

This is perhaps the most interesting question raised on these appeals. It is one upon which the appellant succeeded at first instance in King’s case with the result that it was not argued in the case of Bourgass and Hussain, Mr Grodzinski simply reserving his position. It was a Pyrrhic victory in King’s case (and, by default in the case of Bourgass and Hussain) because it led on to the conclusion that Article 6 had not been breached – essentially the third issue on these appeals. There is one point of common ground: if the Governor in King’s case and the SRBs in the cases of Bourgass and Hussain were engaged in the determination of civil rights and obligations, the procedures deployed were not Article 6 compliant because the Governor and the SRBs were not “an independent and impartial tribunal”. In that eventuality, the question is whether the availability of judicial review is sufficient to satisfy the need for an independent and impartial tribunal.

In a nutshell, the case for the appellants is that domestic law, either in itself or in conjunction with recent decisions of the European Court of Human Rights (ECtHR), acknowledges that serving prisoners have a right to enjoy association with their fellow inmates; that that right is a “civil right” within the meaning of Article 6; and that decisions of a Governor or SRB to interfere with it by authorising or continuing cellular confinement on segregation are “determinations” of it.

Although neither statute nor the YOI Rules confers an express right of association, Ms Philippa Kaufman QC contends that, read together, a number of the provisions of the YOI Rules necessarily imply the existence of such a right. She draws attention to the following:

So far as prisons are concerned, the prison rules are less prescriptive in these respects but they include the following:

Put simply, Ms Kaufman’s submission (supported by Mr Hugh Southey QC) in relation to the Prison Rules, is that the YOI Rules imply or assume a right to associate with fellow prisoners which exists unless and until it is curtailed pursuant to Article 49. The aims set out in rule 3 are to be achieved through the activities referred to in rule 37 and further elaborated in rules 39, 40 and 41. Before the Divisional Court, she supported her submission by reference to a quartet of decisions of the ECtHR. The starting point is Ganci v Italy (2005) 41 EHRR 16 which concerned an applicant who was serving two life sentences for Mafia activities. He challenged nine decrees issued by the Minister of Justice whereby he was held under a special prison regime for a period of four years. His case related to delays by the courts in dealing with his challenge. The Court said (at paragraphs 23 and 25):

The second case is Gulmez v Turkey [2008] ECHR 16330/02. For present purposes, the applicant’s principal complaint related to successive decisions which had deprived him of visitation rights for about a year as punishment for disciplinary offences in prison. Following Ganci, the Court held (at paragraph 30) that “the restriction on the applicant’s visiting rights clearly fell within the sphere of his personal rights and was therefore civil in nature”. As in Ganci, what concerned the Court was the direct interference with the applicant’s right to respect for his private life.

Gulmez was the first case to be decided after the adoption by the Committee of Ministers of the Council of Europe of the European Prison Rules on 11 January 2008. The Court referred to them in passing. The European Prison Rules are in the form of a recommendation to Member States as to the content of their legislation and policies. The basic principles include:

The more specific provisions include ones under the heading of “Contact with the outside world” (rule 24) and then, in rule 25, “Prison regime”. Rule 25 includes the following:

In Enea v Italy, Application 74912/01, 17 September 2009, the Grand Chamber was concerned with another prisoner who was serving a long sentence for Mafia-type criminal offences. As in the case of Ganci, he was subjected to a special regime by ministerial decrees. The restrictions included not only very limited family visits but also a long period (seemingly about three years) in a special form of high-security unit which involved separation from prisoners in other units but not total segregation.

In deciding that there was a dispute over a “right”, the Grand Chamber referred (at paragraph 101) to the European Prison Rules, observing that although they are not legally binding on the Member States, “the great majority … recognise that prisoners enjoy most of the rights to which [they refer] and provide avenues of appeal against measures restricting those rights”. Turning to the question whether the disputed right was a “civil right” for the purposes of Article 6, the Grand Chamber stated (at paragraph 103):

It added (at paragraphs 105-106):

In the event, the Grand Chamber was relatively untroubled by the three years in the high security unit, stating (at paragraph 119):

The fourth case is Stegarescu v Portugal, Application 46194/06, 6 April 2010, where the two applicants had been held in solitary confinement for seven months following receipt of intelligence about an escape plan. Having referred to Ganci and Gulmez, and having set out the above passages from Enea, the Court said (at paragraphs 37-39):

Since King’s case was decided in the Divisional Court, the ECtHR has decided Boulois v Luxembourg, Application 37575/04, 14 December 2010. The applicant was serving a long sentence for serious offences. He submitted several requests for “prison leave” in order to carry out tasks in preparation for his eventual release. They were refused by the Attorney General. The domestic courts rejected his applications for judicial review on the ground that they had no jurisdiction. The ECtHR held by a bare majority that the circumstances involved the determination of a civil right and that the absence of a judicial remedy involved a violation of Article 6. The Court stated (at paragraph 64):

Any impression that that was a somewhat generous decision is fortified by the vigorous dissent of Judge Raimondi (joined by Judges Jociene and Sajo), paragraph 10 of which is in these terms:

I next turn to what the Divisional Court made of this jurisprudence. The relevant passages are in paragraphs 105-106 of the judgment of Pitchford LJ:

The comparison with “the discretionary recipient of a welfare or other benefit” is a reference to those domestic authorities in which it has been held that the discretionary availability of a welfare benefit does not bestow upon an applicant for such a benefit a right which is a “civil right” for Article 6 purposes: R(A) v Croydon London Borough Council [2009] 1 WLR 2557; Ali v Birmingham City Council [2010] 2 AC 39 (see, especially, Lord Hope, at paragraphs 43-49).

There is a risk of confusion in the analysis of a case such as this one. No one is suggesting that decisions about cellular confinement or segregation taken by governors or SRBs are non-justiciable. It is common ground that, as a matter of domestic law, they are susceptible to judicial review. It is apparent from some of the Strasbourg cases that their gravamen was a lack of effective access to the domestic courts. This was plainly so in Ganci. It was substantially so in Gulmez, where the violation occurred within the judicial system when the applicant had been denied a public hearing and had not been permitted legal representation. Enea (which, as a decision of the Grand Chamber, should be treated as the leading Strasbourg authority) was also concerned with the application of Article 6 at the level of the judicial proceedings in which restrictions on personal rights were challenged. Stegarescu, too, arose out of shortcomings in the applicable domestic judicial process. And in Boulois “the administrative courts did not rule on the merits of the application for judicial review” (paragraph 78). It is not surprising that, where there are shortcomings in the ultimate judicial process, the spotlight turns back on the preceding administrative decision-making process which, as in the present cases, is not by itself Article 6 compliant.

In the present cases, the burden of the submissions of Ms Kaufmann and Mr Southey is, in the first place, to establish the engagement of Article 6 at the time of the decisions of the Governor in King’s case and the SRBs in the cases of Bourgass and Hussain. As I read them, there is nothing in the Strasbourg authorities which requires Article 6 compliance at the stage of the administrative decision to segregate or to continue segregation. Nor does any domestic authority require anything amounting to it at that stage.

So far as Article 6 is concerned, any non-engagement at the point of the administrative decisions may be because there is no established “civil right” or because there is, as yet, no dispute (or contestation) about one. There is plainly such a dispute when an application for judicial review is commenced but I do not consider that there is one earlier than that.

The question whether there is a “civil right” of association with other prisoners is a difficult one. Mr Grodzinski submits, correctly in my view, that the Strasbourg cases do not unequivocally establish one as a matter of Convention law. They generally emphasise rights such as family visits. Nor do the YOI Rules or the Prison Rules expressly confer a right to associate with other prisoners.

The question therefore becomes: is there an implied right of association with other prisoners which amounts to a “civil right”? The Divisional Court found such a right primarily on the basis of the legal effect of a custodial sentence. In the words of Pitchford LJ (at paragraph 106), the sentenced prisoner “forfeits the freedom (and the right) to associate with whomever he wishes but he does not, in my view, thereby forfeit his right of association with all his fellow human beings. He does not, in other words, receive a sentence of solitary or cellular confinement”. That is an attractive analysis, but does the second sentence, which is undoubtedly correct, necessarily secure the “right of association” postulated in the first? And, if it does, does it necessarily require association with other prisoners as a “civil right”?

In my view, it is significant that the YOI rules and the Prison Rules (and, for that matter, the European Prison Rules) stop short of conferring a right to associate with other prisoners. Whilst there are mandatory provisions, particularly in relation to YOIs, for such things as education, training, work and physical education, all of which are usually provided to prisoners in groups, individual provision remains a possibility. Moreover, as Mr Grodzinski points out, someone in cellular confinement or segregation retains the facility to associate with a number of non-prisoners, including prison welfare and support staff, on a daily basis. It seems to me that the correct analysis is to see association with other prisoners as a normal privilege rather than a right and that it is subject to withdrawal in accordance with the Rules, particularly those permitting cellular confinement or segregation, which invest governors with discretionary powers. The exercise of those powers and the process of review by the SRBs are amenable to judicial review which, among other things, will secure Convention rights such as those under Articles 3 and 8.

I do not consider that the Strasbourg authorities are inimical to this analysis. The early Commission decisions on security categorisation tend to support it: see X v United Kingdom, Application 8575/79 and Brady v United Kingdom (1979) 3 EHRR 297, which classify such categorisation decisions as “administrative” rather than as determinations of disputes about civil rights. We have not had our attention drawn to any subsequent questioning of these authorities.

The Strasbourg decision which is concerned specifically with solitary confinement is McFeeley v United Kingdom (1981) 3 EHRR 161. The complaints included “constant imposition of periods of solitary confinement”. The Commission stated (at paragraphs 102-103):

For my part, I consider this approach to the internal decision-making stage to be uncontradicted by later Strasbourg authority and consistent with the modern domestic jurisprudence on discretionary administrative decision-making such as A v London Borough of Croydon [2008] EWCA 1445, per Ward LJ at paragraphs 50-59 and Ali v Birmingham City Council [2010] 2 AC 39, per Lord Hope at paragraph 49. Although these cases were concerned with welfare or economic rights, as opposed to the imposition of sanctions, the conceptual matrix of administrative discretion is the same.

However, it is the factual rather than the conceptual matrix that is of fundamental importance. Prison or YOI Governors have the responsibility of maintaining good order and discipline in a complex and potentially combustible setting. They have to make urgent decisions about such matters as segregation based on their experience, expertise and judgment. They do so not just in a binary mode as between themselves and an individual prisoner. They are acting in the interests of the security of the institution as a whole. Sometimes they may have to make a decision which has an immediate restricting effect on the whole or a large part of the institution – for example, the immediate “lockdown” of an entire wing on receipt of apparently credible information about a planned breakout. Such urgent matters are not susceptible to a judicialisation of the decision-making process. In the present cases, it would be quite unrealistic to require the initial decision to segregate to be taken by “an independent and impartial tribunal established by law” - presumably an independent adjudicator akin to the “additional days” procedure (see paragraph 3, above). The need for action is often immediate. The cases of Bourgass and Hussain are paradigm examples. It is true that when the SRB stage is reached, whilst initially the timeline is short, the urgency is less extreme. However, it seems to me that the review is one best entrusted to those with the necessary experience and expertise as an exercise of collective, professional discretion, with built-in safeguards, albeit falling short of Article 6 standards. Amenability to judicial review is appropriate protection. I shall return to this theme when I address the adequacy of judicial review on the assumption that, contrary to my view, Article 6 is engaged at the Governor or SRB stage: see paragraphs 57- 68, below.

For all these reasons, I consider that Article 6 was not engaged at the stages of the Governor’s decision or the SRBs.

If the appellants are unable to obtain the protection of Article 6 directly, their case is that they have an alternative route by way of Articles 3 and 8. The origin of this submission is said to be the Human Rights Act and the judgment of Lord Nicholls in Re S (Minors) [2002] 2 AC 291. Its implication is that Article 6 bites not because of international obligation but as part of domestic law. Lord Nicholls was considering Article 8 in the context of care proceedings. He said (at paragraphs 70-73):

Perhaps the most relevant application of this “transformation” is to be seen in Secretary of State for the Home Department v BC [2010] 1 WLR 1542. The case concerned “light touch” control orders not involving deprivation of liberty. The essence of the decision of Collins J is distilled in the headnote:

In these circumstances, fairness required disclosure to the standard set by A v United Kingdom [2009] 49 EHRR 29 and AF v Secretary of State for the Home Department (No3) [2010] 2 AC 269. S and BC are the blocks upon which Mr Southey, supported by Ms Kaufmann, seek to build.

The first question is whether Article 3 and/or Article 8 are engaged in the present cases. In King’s case, the Divisional Court was satisfied that Article 3 was not engaged (see Pitchford LJ at paragraph 114 and Maddison J at paragraph 129). In relation to the short period of cellular confinement in that case, the contrary seems to me to be completely unarguable. However, there was a disagreement between the members of the Court about Article 8. Neither thought that the three day period in question amounted to an interference with King’s private life. However, Pitchford LJ considered that cellular confinement for 10 or 16 days “may in some circumstances engage Article 8” but Maddison J found it “difficult to conceive of circumstances” in which it would. In the cases of Bourgass and Hussain, the issue was not canvassed.

It seems to me that none of the appellants comes near to establishing even a prima facie Article 3 case: see, for example, Ramirez Sanchez v France (2007) 45 EHRR 49. As far as Article 8 is concerned, the position was succinctly described by Lord Bingham in R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, at paragraph 32:

I see no material difference for present purposes between segregation in a high security hospital (Munjaz) and in a YOI or prison, nor between segregation (however termed) for punishment and for good order and discipline. As to the facts, I agree with the Divisional Court that cellular confinement of three days did not even arguably engage Article 8 in King’s case and I tend to agree with Maddison J about the 10-16 day hypothesis. The position in relation to Bourgass and Hussain, however, is different. They were each segregated for quite long periods – about six months in the case of Bourgass (second period alone) and about six months in the case of Hussain.

In Hassan v Secretary of State for Justice [2011] EWHC 1359 (Admin), Ouseley J held that a period of segregation in HMP Full Sutton for some seven weeks “did not interfere with the claimant’s Article 8 rights as a prisoner sufficiently significantly as to require justification” (paragraph 65). On the other hand, in R (Bary) v Secretary of State for Justice [2010] EWHC 587 (Admin), the Divisional Court (Aikens LJ and Openshaw J) held that suspected terrorists, who were unconvicted but who were detained for much longer periods as the only occupants of a special unit at HMP Long Lartin awaiting extradition or deportation, had suffered interference with their Article 8 rights but that the interference had been justified.

It seems to me that the periods of segregation in the cases of Bourgass and Hussain probably did engage Article 8 at some stage, certainly on an arguable basis. I have no doubt that, in any event, the total segregation in each case was justified for the reason articulated by Lord Bingham in Munjaz (paragraph 54, above). However, engagement or arguable engagement opens the door to Mr Southey’s submission. The real question is whether he can pass through that door. I am quite satisfied that he cannot.

The passage in the seminal judgment of Lord Nicholls in S was analysed and developed, particularly by Lord Hoffmann in RB (Algeria) v Home Secretary [2010] 2 AC 110 which concerned the use of closed material in deportation cases before the Special Immigration Appeals Commission. The law on that specific issue may still be in a state of development but Lord Hoffmann’s exposition of general principles remains authoritative. The crucial passages are in paragraphs 175 and 178:

Lord Hoffmann’s speech attracted the express concurrence of Lords Hope, Brown and Mance. Indeed, in one sense it had been foreshadowed by Lord Hope in R (West) v Parole Board [2005] 1 WLR 350 when he said (at paragraph 79):

Unlike cases such as S and BC, which were concerned with the fairness of judicial proceedings, the present case is concerned with administrative decision-making in a specific context which may lead to a subsequent challenge in judicial proceedings in the Administrative Court. Mr Grodzinski submits that neither the Governor in King’s case nor the SRBs in the cases of Bourgass and Hussain were determining a dispute about whether the appellants’ Convention rights had been violated. Of course, the Governor and the SRBs were obliged, pursuant to section 7 of the Human Rights Act, to ensure that these decisions did not breach the appellants’ Convention rights, but that did not transform the processes with which they were concerned into determinations of disputes about the appellants’ Convention rights. I agree with and adopt this analysis. If it were not correct, then on every occasion on which any public authority takes a decision which might arguably engage Article 8 and therefore require justification, the process leading to the decision would engage Article 6. That would be absurd. In reaching this conclusion, I acknowledge that it has represented the law in Northern Ireland in prison cases, for a number of years: see the illuminating judgment of Weatherup J in Re Graham’s Application for Judicial Review [2004] NI QB 24, at paragraphs 27-28 and Re Corden’s Application for Judicial Review [2004] NI QB 44, at paragraphs 18-29.

If, as I believe, the decisions of the Governor and of the SRBs did not engage Article 6 at that stage, the next issue does not arise. The decisions would simply be susceptible to judicial review on conventional grounds. However, if Article 6 was engaged, the question arises as to whether the absence of an independent and impartial tribunal at the internal stage is cured by the availability of judicial review. This is the point at which the appellants met resistance before the Divisional Court and Irwin J respectively. In the King case, Pitchford LJ said (at paragraph 125):

It seems to me that the starting point is Bryan v United Kingdom (1995) 21 EHRR 21 and its reception in the jurisdiction of our domestic courts. In Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430, Lord Hoffmann said (at paragraph 51):

Certain other propositions are now the subject of clear authority:

The concept of “full jurisdiction”, which emerged from Bryan and was developed by our courts in R (Alconbury Developments Ltd) v Secretary of State for the Environment [2003] 2 AC 430 and Runa Begum:

An important consideration is whether the issues to be determined require “a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to consider pooling aims” as opposed to “deciding a simple question of fact”. Tsfayo v United Kingdom (2009) 48 EHRR 18, at paragraph 46.

To quote again from the speech of Lord Hoffmann in Runa Begum, at paragraph 59, “the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators”.

None of these propositions or principles is a matter of dispute in the present case. The battleground is as to how they apply to the factual matrix of segregation decisions and reviews. Ms Kaufmann submits that the initial decision of the Governor in King’s case is tainted by a “strong institutional pull on governors to maintain the morale of prison officers” with a consequent lack of impartiality or, at least, apparent impartiality. She further submits that a prisoner may be unfairly prejudiced by a governor’s previous knowledge of him.

The point about the “institutional pull” was constructed in part on the evidence adduced on behalf of the Secretary of State. Governor Shepherd stated:

Nor do I consider there to be any substance in the complaint about unfairness deriving from a governor’s prior knowledge of the prisoner. Courts, employers, head teachers and many others often have such knowledge but it does not require their recusal.

In the case of Bourgass, Mr Southey points to the stark factual issue of whether Bourgass was involved in any way in the assault on MS but the authorities make it clear that the existence of a factual dispute does not render judicially reviewable internal decision-making inappropriate. In relation to both Bourgass and Hussain, it is submitted that the procedure is defective because there is no right for the prisoner to make representations before the initial decision to segregate. Mr Southey seeks to rely on Wright but that was concerned with a totally different context involving the risk of “imposing … possibly irreparable damage to … employment or prospects of employment” (per Baroness Hale at paragraph 28). One only has to recall the circumstances that gave rise to the segregation decisions in relation to Bourgass and Hussain to appreciate the necessity for urgency. Moreover, the initial decisions, which cannot last more than 72 hours, are subject to early and regular periodic review thereafter, at which point the prisoner can make representations to the SRB. Although Hussain participated in the process in that way, Bourgass chose not to do so for a significant period between May and July.

The next complaint is that judicial review cannot repair the unfairness which results from the fact that a prisoner has no right to see intelligence material which informs the decision to segregate and its review by the SRB. Again one has to keep in mind the context. I refer again to what Irwin J said at paragraph 96 of his judgment (see paragraph 69 below). It is suggested that the only way in which the alleged unfairness could be mitigated would be by a system of special advocates or the possibility of disclosure to a prisoner’s solicitor upon his undertaking not to reveal the material to his client. It seems to me that such procedures would be unworkable in this context. Irwin J rejected a special advocate solution, saying (at paragraph 95):

All this brings me to the two points which, in my judgment, compel the conclusion that the internal procedures surrounding segregation decisions and their review, leading to the availability of judicial review, amount to determination by an independent and impartial tribunal. The first is that, par excellence, this is an area calling for “professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims”: Tsfayo, paragraph 58 above. As it is put in the witness statement of Ms Deborah Hay, at paragraph 22:

Secondly, and consistently with “the great principle which Bryan decided”, is the manner in which the material decisions are taken. The immediate decision of the Governor is short-term and taken within a defined structure. Once the matter comes within the purview of the SRB, a wide and diverse range of personnel becomes involved including psychologists, health care officials, chaplains and prison officers of various levels and functional responsibilities. All this gives rise to confidence in the process. In this regard, special mention should be made of IMB members who are able to bring a further element of independence to SRBs. IMB members attended SRB meetings in relation to both Bourgass and Hussain. They have independent access not only to the Governor of the Prison but also upwards into the civil service and ultimately to the Secretary of State.

In my judgment, the decision-making processes within the prison and the role of the SRB provide a satisfactory framework for professional and evaluative judgments with the safeguard of judicial review. Accordingly, if Article 6 is engaged, I consider that, notwithstanding the absence of the elements of independence and impartiality in the Article 6 sense within the prison, the procedure as a whole is Article 6 compliant on a “full jurisdiction” basis. I again acknowledge the persuasive authority of the judgment of Weatherup J who reached the same conclusion in Re Corden’s Application for Judicial Review (paragraph 31).

I record in passing that in 2008 (the year for which we were provided with figures), there were over 22,000 awards of cellular confinement or adjudication. It goes without saying that if the law were to require judicialisation of the internal decision-making procedures by, for example, an extension of the independent adjudication system, the ability of the authorities to act expeditiously would be gravely hampered.

It is submitted, particularly on behalf of Bourgass, that even if Article 6 does not avail him, he should be able to invoke common law procedural fairness in support of his case that he was not provided with adequate disclosure or reasons to permit a meaningful opportunity to challenge his segregation. Mr Southey acknowledges that ex parte Hague is an obstacle in his way if this ground of appeal is to be sustained. In the Court of Appeal (this aspect of the case was not considered in the House of Lords), Taylor LJ said, [1992] 1 AC 58, 112:

It is common ground that this was part of the ratio of Hague. In principle, we are bound by it. In seeking to persuade us that it should no longer be treated as good law, Mr Southey is unable to shoehorn the circumstances into any of the categories for departing from our previous decisions set out in Young v Bristol Aeroplane Company [1944] KB 718. Recognising that to be a forlorn task, his skeleton argument suggests that we should feel free to innovate because of subsequent legal developments such as the enactment of the Human Rights Act and the increasing recognition of the duty to give reasons illustrated by North Range Shipping Ltd v Seatrans Shipping Corporation [2002] 1 WLR 2397. It would be an irony if, having failed on his Article 6 case, Mr Southey could succeed in procuring a change in the common law by reference to Article 6. The question mark inserted by Hooper LJ, obiter in Secretary of State for the Home Department v SP [2004] EWCA Civ 1750, at paragraph 88, takes the matter no further. Moreover, North Range Shipping concerns circumstances about as far removed from those in Hague and the present case as it would be possible to find. Its context was commercial arbitration. I am entirely satisfied that we remain bound by Hague.

Even if there were scope for some development of the law, the facts in relation to Bourgass do not favour the submission on his behalf. He knew that the prison authorities considered him to be a bully and had placed him on the anti-bullying regime. He knew that he was suspected of involvement but not direct participation in the assault on MS. No doubt if he had attended the several SRB meetings which he chose not to attend, he would have discovered more about the concerns of the authorities. In any event, an important aspect of the case against him was the result of intelligence derived from an undisclosed source. As Irwin J stated (at paragraphs 95-96):

This ground of appeal relates only to Hussain. It concerns his access to the telephone for communication with his solicitor while in segregation. PSO1700 states:

The evidence discloses that in a sample period of 16-22 June, Hussain was provided with access to the telephone on 16,17,19,21 and 22 June. He requested access on 18 June but there was heavy demand and he was offered the opportunity to write to his solicitor. He made no request on 20 June.

Irwin J dealt with this aspect of the case in paragraphs 106-108 of his judgment. He said:

It follows from what I have said that I would dismiss these appeals. I am grateful to all counsel and solicitors for the excellent preparation and submissions in this case.

I agree that each of the appeals should be dismissed. Insofar as the reasons given by Elias LJ for that outcome differ from those given by Maurice Kay LJ, I agree with Maurice Kay LJ, as I do on all other points as well.

I gratefully adopt the facts set out by Maurice Kay LJ in his lucid judgment. I agree that the appeals should be dismissed, but not entirely for the reasons given by Maurice Kay LJ. Accordingly, I add a short judgment of my own. Save where I indicate otherwise, I agree with his judgment.

The focus of both these appeals is on the requirement under Article 6 of the Convention that civil rights should be determined by independent and impartial bodies. On the face of it this is a simple and uncontroversial principle. In practice, each aspect of the definition has caused difficulties. First what exactly are “civil rights” and are they engaged? Second, even if they are engaged, does the decision under scrutiny constitute a determination of those rights? Third, if the original decision maker lacks the necessary independence, when might that be made good by a later independent review of the decision?

The danger of construing the Article too rigorously is that it will over-judicialise administrative and disciplinary proceedings. Both the domestic courts and Strasbourg are alive to this risk, and the solutions to the questions posed above are capable of providing control mechanisms which can be used to prevent this occurring.

The appellants in these appeals submit that their civil rights are determined by the imposition of these disciplinary sanctions since they were denied the right to associate with fellow prisoners. The body taking the decisions, namely the prison governor in King’s case and the governor and the Segregation Review Boards in Bourgass and Hussain, are not independent bodies, and the availability of judicial review by an independent court could not remedy their lack of independence. This is because the key issue in the initial decision was the determination of facts (including in King’s case the question whether he was fit to plead), and findings of fact cannot fully and effectively be reopened in a judicial review challenge.

The Secretary of State, by contrast, submits that no civil rights are engaged; that if they are, there was no determination of those rights save at the point where the legality of the disciplinary actions was questioned by way of judicial review, when the judicial safeguards were plainly Article 6 compliant; and that even if civil rights could be said to have been determined at the initial disciplinary stage, the combination of procedural safeguards at that level, combined with effective judicial review, constituted adequate compliance with Article 6.

In King the Divisional Court carefully analysed this issue and concluded that civil rights were engaged. As a consequence, in the later case of Bourgass and Hussain it was conceded before Irwin J that placing a prisoner in solitary confinement involved his civil rights, although the Secretary of State reserved the right to contend otherwise on appeal, and has done so.

In King, Pitchford LJ, with whose judgment on this point Maddison J agreed, analysed in considerable detail the four cases which Maurice Kay LJ has also considered, namely Ganci v Italy (2003) 41 EHRR 272; Gulmez v Turkey (Application No 16330/02), unreported); Enea v Italy (2009) 51 EHRR 103 GC; and Stegarescu v Portugal (Application No. 46194/06). He concluded that from these cases could be discerned a principle that the residual rights which prisoners can exercise by virtue of the “normal” prison regime were civil rights, albeit that they might be denied in particular circumstances; and that under domestic law it has been recognised that whilst the usual rights of freedom of movement and of association are severely curtailed by a sentence of imprisonment, nonetheless they are not totally excluded. Moreover, he concluded that the YOI rules and the prison rules are premised on the assumption that a right to associate with fellow prisoners exists. As the judge pithily put it, “a prison sentence is not a sentence of solitary or cellular confinement”.

Mr Grodzinski QC, counsel for the Secretary of State, submits that the ECtHR cases do not support the proposition that the interference with the right of prisoners to associate with their fellow prisoners is a civil right. Rather they focus on the right to receive family visitors or to deal with finance and similar matters touching more directly on personal rights. He also rightly emphasises that the prisoners are not deprived of the right to associate with others since they will have contact with various persons in the course of the day, such as support staff and the prison chaplain.

Maurice Kay LJ has accepted these submissions. He has concluded that the right of association with other prisoners is a privilege and not a right and can be denied in accordance with the prison rules, and he places some emphasis on the fact that neither the prison rules nor the YOI rules confer in terms a right of association with other prisoners. He treats these cases as akin to those, such as A v London Borough of Croydon [2008] EWCA Civ 1445 and Ali v Birmingham City Council [2010] 2 AC 39, where welfare and economic rights are under consideration, and he places emphasis on the case of McFeeley v United Kingdom (1981) 3 EHRR 161 to support the proposition that sanctions imposed for offences against prison discipline do not involve the determination of civil rights.

I respectfully disagree with that analysis and concur on this issue with the conclusion of the Divisional Court, although like Maurice Kay LJ, I too have not found the resolution of this matter easy. I accept that in the context of English common law it would not be inaccurate to describe the freedom to associate with other prisoners as a privilege; it is certainly not a strict right in the Hohfeldian sense. Nor is there anything in the Prison Rules or the YOI rules which gives it that status, although it seems to me that the rules are premised on the expectation that free association with other prisoners will be the norm. I would not place any weight on the fact that the rules do not in terms confer this right, since the common understanding would be that a degree of social interaction with other prisoners will arise in the ordinary course of events. Moreover, whilst the freedom to associate is of course necessarily curtailed by the prison sentence, the denial of such freedom as is permitted by the prison regime must be lawfully justified, whether for disciplinary or security reasons. Nor do I consider that the comparison with welfare or other discretionary benefits is apposite. The right to associate with whomsoever one pleases is a fundamental aspect of personal integrity. Whilst a prison sentence truncates that in a major way and entitles the prison to move prisoners for all sorts of reasons which will necessarily affect those fellow inmates with whom a prisoner may associate, it does not remove that freedom entirely. As Lord Steyn observed in R v Home Secretary ex p. Simms [2000] 2 AC 115, 120 G:

I accept that there is no clear and unequivocal decision of the ECtHR which establishes this residual freedom of association as a civil right. All the cases where civil rights have been found to have been engaged have been determined on the basis that the disciplinary sanction affects other rights more readily recognisable as private civil rights. There is a passage at paras 37-39 of the decision in Stegarescu (see para 30 of the judgment of Maurice Kay LJ) which may on one reading be said to recognise the freedom of association as a civil right, but I accept that it is ambiguous. However, for the reasons I have set out, in my view it should be treated as a civil right within the autonomous meaning of Convention.

I would have reached that conclusion on the basis of the cases before the Divisional Court. I am reinforced in my view by the judgment of the ECHR in the case of Boulois v Luxembourg Application 37575/04, delivered after the Divisional Court gave its judgment, and considered by Maurice Kay LJ at para 31-32 above. The court held, albeit by a bare majority, that the refusal to grant a request for prison leave constituted the determination of a civil right both because it was a right which, subject to certain conditions being met, was granted by the law of Luxembourg, and because it was a right recognised in the European Prison Rules. The court held (para 64) that the purpose of the request was to promote the prisoner’s social rehabilitation which was “crucial to the protection of his right to lead a “private social life””. The fact that the Luxembourg courts lacked jurisdiction to review the decision taken by the Prison Board constituted a breach of Article 6 since there was no decision on the merits by an independent tribunal. It is pertinent to observe that the court noted (para 57)that whilst the Convention institutions had traditionally taken the view that the manner of execution of custodial sentences did not fall within the scope of Article 6, “the case law has evolved in relation to proceedings concerning detention in prison”. In my view this case supports the conclusion of the Divisional Court, confirms that some of the older cases are no longer reliable, and indeed adopts a particularly broad - some might say extravagant - concept of civil rights in the prison context. In particular, in view of the recent jurisprudence I would not place weight on the McFeeley case decided more than thirty years ago by the European Commission on Human Rights. The rights relied on in that case, which involved the dirty protest by IRA prisoners, were all Convention rights; it was not claimed that any other independent civil rights were in issue. Yet there can be no doubt that some of the rights affected by the sanctions imposed in that case, such as visiting rights and financial interests, would now be seen as civil rights attracting Article 6 safeguards.

The Secretary of State relies on the principle, established in a series of cases, that there can be no determination of a civil right until there is a genuine dispute or “contestation”, to use the French phrase, and the proceedings must be directly decisive of the right in question: see e.g. the Enea case, para 99. On the facts of these cases he submits that there was no dispute until the prisoners sought to avail themselves of the right to pursue the judicial review proceedings. Maurice Kay LJ accepts this submission, but again I respectfully disagree, essentially for the reasons advanced in the admirable judgment of Pitchford LJ below, especially paras 108-112.

In my view, it was obvious, at least in the cases of Bourgass and Hussain, that the prisoners were disputing the right of the prison authorities to impose disciplinary sanctions upon them. I agree with Pitchford LJ that although the purpose of the disciplinary proceedings was not specifically to determine the right of association with other prisoners, it was directly and materially related to that issue, and under Convention law that suffices to attract the protection of Article 6 (assuming that a civil right is engaged). It was obvious that their liberties were at risk of being curtailed beyond that inherent in their prisoner status, and that they were objecting to this.

The recent Boulois case casts light on this issue. In that case the court held that the dispute arose when the prison board refused the various requests for prison leave and that the outcome of the proceedings before the board was decisive of the question whether he was entitled to leave. The court did not treat the dispute as arising only once the prisoner had indicated an intention to seek review of the board’s decision. Similarly here; the prison authorities were determining in a sufficiently direct and material way the exercise the right of association with fellow prisoners.

In my view this is in contrast to the claims that Articles 3 and 8 were infringed by the actions of the governor. I agree with Maurice Kay LJ that they were not in fact infringed in the circumstances of these cases, and I also agree that the nature of the dispute before the governor was not one that engaged these Convention rights for the reasons he has given. Nor, in my opinion, could they be said to have been directly and materially determined by the decisions. Every public body must act consistently with its Convention obligations when exercising its functions, but that does not mean that the nature of their decisions is to determine Convention rights with the consequence that the safeguards of Article 6 are then necessarily in play. I would accept that there was no dispute about Convention rights until they were raised before the court, and the court itself determines that dispute in accordance with Article 6 principles.

The complaint is that the procedures are not Article 6 compliant for two inter-related reasons. The principal reason advanced is that the prison governor and the SRBs are not independent tribunals; but the second is that they have to make findings of fact which are not effectively reviewed by the judicial review process. It is asserted that the lack of independence raises concerns about potential bias and in particular the appearance of bias, especially where there is a direct conflict of evidence between the prisoner and a prison officer, as will often be the case. Moreover, the appellants contend that the nature of the disciplinary process in cases of this kind makes it wholly unsatisfactory to focus on the judicial review stage because in practice the disciplinary sanction will have been imposed and served by the date of the hearing. The need for a proper initial decision by an independent and impartial tribunal complying with Article 6 is therefore of paramount importance. The appellants also place considerable weight on the decision of the ECtHR in Tsfayo v United Kingdom (2009) 48 EHRR 18 which confirms that the supervisory jurisdiction of the High Court will not necessarily suffice to remedy the lack of institutional independence at the first level of decision making, particularly where that tribunal is determining simple factual issues which require no special expertise or knowledge and which cannot be revisited on appeal.

I recognise the force of these submissions; in my view each carries weight. But the prison context is a very special one which in my judgment justifies the arrangements in place and makes them Article 6 compliant, essentially for the reasons given by Maurice Kay LJ. I would be very reluctant to require key areas of prison discipline to be subjected to external determination unless compelled by authority to do so.

I would summarise my principal reasons for concluding that the procedures are Article 6 compliant as follows. First, as a matter of policy there are powerful reasons for permitting matters of prison discipline to be handled internally. The prison governor is particularly well placed to fix the appropriate sanction by reference to the particular individual and the needs and problems of the prison itself, a point of distinction from Tsfayo. An appreciation of the wider dynamics of the prison is clearly desirable. This was indeed accepted by the Grand Chamber in the case of Ezeh and Connors v United Kingdom (2004) 39 EHRR 1 para. 85 when the court recognised the “practical reasons and reasons of policy” in establishing a special prison disciplinary regime. In Ezeh the court held that the imposition of extra days imprisonment involved the determination of criminal rights, notwithstanding that it had been classified domestically as a disciplinary act. The consequence of that classification was that Article 6 was infringed because the prisoner was not given the chance to be legally represented before the governor. Following that decision, and as a consequence of it, the power to impose extra days has been removed from governors and given to judges - by and large district judges. But there is nothing in Ezeh which suggests that this would be necessary for other disciplinary sanctions. Second, whilst I see force in the concern about the perception of bias, there is in general no reason why prison governors ought not in fact to be able to make fair and independent assessments, notwithstanding that they are not institutionally independent of the prison. Lord Rodger in R (Al Hasan) v Secretary of State for the Home Department [2005] 1 WLR 688, para 11 was in “no doubt that an informed and fair-minded observer” would take that view. Again it is to be noted that they do not have a financial interest in the outcome which in part motivated the decision in Tsfayo. Third, the internal procedures include the essence of a fair procedure, and the initial decision is reviewed within 72 hours and periodically thereafter by the SRB which includes a wide range of individuals. Fourth, it would greatly increase the cost and time for these decisions to be given to judges; and it would be particularly unsatisfactory where, as is almost always the case, a speedy decision is required. Fifth, it is in my view highly relevant that in all of the prison cases where it has been held that civil rights are engaged, no-body appears to have suggested that there is anything inappropriate about the initial decision being taken internally. The concern has been with the alleged lack of any effective review.

It is true that this analysis involves a bright line distinction between cases where extra days of imprisonment are a possible sanction and those where the normal prison benefits are denied, even though a prisoner might in some circumstances find the latter more objectionable than the former. But in my judgment that is a perfectly sensible dividing line distinguishing the imposition of a disciplinary sanction which engages criminal rights and a sanction which, if it engages any rights at all, engages only civil rights.

For these reasons, I would dismiss these appeals.