Case comment: R (Bourgass & Anor) v Secretary of State for Justice  UKSC 54
17 Monday Aug 2015
This began as three similar cases challenged procedures relating to decisions to move prisoners or detainees into cellular confinement or segregation. The decisions to segregate the prisoners were made under the Prison Act 1952, rule 45 of the Prison Rules 1999 and PSO 1700.
Rule 45, para 1 enables the governor of the prison to arrange for the prisoner to be segregated and para 2 states that the prisoner shall not be segregated for more than 72 hours without the authority of the Secretary of State and the authority given shall be for a period not exceeding 14 days.
Three prisoners, Bourgass, Hussain and King, challenged their confinement or removal from association on procedural grounds under the ECHR, art 6 and / or the ECHR, arts 3 and 8.
The main issues before the Court of Appeal were:
- Did the prisoners have an ECHR, art 6, right to associate with other prisoners, derived from provision of domestic law, that was “determined” by the proceedings in question?
- In the alternative, did the proceedings determine their art 6 civil rights on the basis that cellular confinement or segregation interfered with their other ECHR rights, namely art 3 and art 8?
- If the answer to points 1 or 2 is yes, was the overall process by which the appellants’ civil rights were determined compliant with art 6, in particular given the availability of judicial review to challenge the decisions of the prison governors and the Segregation Review Boards (SRBs)?
In relation to the first question, the CA noted in its judgment that the three men’s case is that domestic law, either in itself or in conjunction with recent ECtHR decisions, 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 the ECHR, art 6; and that decisions of a governor or SRB to interfere with it by authorising or continuing cellular confinement or segregation are “determinations” of it.
According to the CA, the burden was to establish the engagement of the ECHR, art 6, at the time of the decisions of the governor or SRBs, however there was nothing in the relevant Strasbourg authorities or domestic authority which requires compliance with art 6 at the stage of the administrative decision to segregate or continue segregation. The CA stated that the question was therefore whether there is an implied right of association with other prisoners which amounts to a “civil right”?
The CA thought it significant that the Young Offender Institution Rules 2000 and the Prison Rules 1999 stop short of conferring a right to associate with other prisoners. It held that the correct analysis is to see association with other prisoners as a normal privilege rather than a right, one that is subject to withdrawal in accordance with the Rules, which invest discretionary powers in governors. The CA stressed that the exercise of these powers and the SRB review process are amenable to judicial review which will secure rights such as those under the ECHR, art 3 and art 8. The CA concluded that this amenability to judicial review is appropriate protection and therefore the ECHR, art 6 was not engaged at the point at which the governors or SRBs made their decisions.
In relation to the second question, the court noted that the present case was concerned with administrative decision-making in a specific context which may lead to a later challenge in judicial proceedings in the Administrative Court. While the governor and the SRBs were obliged, under the Human Rights Act 1998, s 7, to ensure these decisions did not breach the prisoners’ rights under the ECHR, that did not transform the processes with which they were concerned into determinations of disputes about the prisoners’ rights under the ECHR.
In relation to the third question, the CA noted that if the decisions of the governors and the SRB did not engage the ECHR, art 6 at that stage, then the issue does not arise and the decisions would be susceptible to judicial review on conventional grounds. However, if art 6 is engaged, the CA considered that, notwithstanding the absence of the elements of independence and impartiality in the ECHR, art 6, sense within the prison, the procedure as a whole is art 6 compliant on a “full jurisdiction” basis.
Supreme Court decision
Bourgass and Hussain appealed to the Supreme Court. The Supreme Court looked at two issues: (1) whether the segregation was lawfully authorised and (2) whether the procedure followed met the requirements of fairness under the common law and, if applicable, the ECHR, art 6(1).
In relation to the first issue, Lord Reed in his judgment (with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agreed) noted that the decisions taken under rule 45(2) in these two cases were not taken by the Secretary of State, but instead by a senior prison officer or “operational manager”. The Carltona principle – whereby a decision of a departmental official is constitutionally the decision of the minister himself – cannot apply to rule 45(2) in order to mean that a governor can take a decision on the Secretary of State’s behalf. Lord Reed noted that rule 45(2) is meant to provide a safeguard for prisoners and it can only do that if it ensures that prolonged segregation does not continue without being reviewed by independent officials.
The Supreme Court noted that this was enough to allow the appeals but it went on to consider the issue of procedural fairness as well. In terms of the prisoner’s right to make representations, Lord Reed noted that common law fairness requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken to authorise continued segregation. This includes ensuring that the prisoner knows the substance of the case being advanced in sufficient detail to allow him to respond, by informing the prisoner of the substance of the matters on the basis of which the authority of the Secretary of State is sought. Lord Reed concluded that in the present cases, more could and should have been said.
On the question of whether the decisions to authorise continued segregation fall within the ECHR, art 6(1) to mean the prisoner is entitled to a hearing before an independent and impartial tribunal, the Supreme Court noted that this depends on whether the decision involves the determination of a civil right recognised by English law. It concluded that art 6(1) does not apply because a prisoner does not possess any private law right to enjoy the company of other prisoners, or any precisely defined entitlement to association as a matter of public law.
The Supreme Court unanimously allowed the two appeals and granted a declaration that the prisoners’ segregation beyond the initial 72 hours was unlawful, as it was not authorised.
The Supreme Court’s decision has been welcomed by The Howard League for Penal Reform, which intervened in the case as a neutral party to provide expert evidence. In a media release, the penal reform charity notes that in its experience of working in prisons, carrying out research and representing young people in custody, “segregating vulnerable and disturbed people tends to make their problems worse”. The charity is urging the Secretary of State to take steps to change the segregation process to make sure there is independent external scrutiny of decisions to segregate for longer than 72 hours, in accordance with the applicable rules.