Case Preview: R (Bourgass & Anor) v Secretary of State for Justice
16 Monday Mar 2015
Court of Appeal judgment:  EWCA Civ 376
Three cases raised similar issues concerning procedures relating to decisions to move prisoners or detainees into cellular confinement or segregation.
King was serving a seven year sentence in a young offender institute for death by dangerous driving. He was subjected to cellular confinement between 11 and 13 April 2009 for failure to comply with a lawful order.
Bourgass is serving a sentence of life imprisonment for murdering a police officer and 17 years in prison for conspiracy to commit public nuisance by the use of poisons and / or explosives. He was segregated for a period of several months for reasons of good order and discipline. Issues included accusations that he had been involved in bullying and intimidation and accusations that he had been considered to have influence over other prisoners.
Hussain is serving a long sentence for terrorism-related offences. While in prison, he seriously assaulted another prisoner and was placed in segregation for several months for reasons of good order and discipline.
All three 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?
Court of Appeal Decision
In relation to the first question, the CA noted 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 is 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 is 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.
The CA went on to reject the submission, particularly by Bourgass, that he should be able to invoke common law procedural fairness in support of his case that he was not provided with sufficient disclosure or reasons to permit a meaningful opportunity to challenge his segregation. In particular, the CA noted that facts relating to Bourgass did not favour this submission. The CA also rejected Hussain’s claim that he was denied his right of access to legal advice due to additional restrictions on his telephone access while in segregation.
The CA concluded that the appeals should be dismissed.
Appeal to the Supreme Court
The case was heard by the Supreme Court on 16 and 17 February 2015, which had to decide if the decisions were unlawful under the ECHR, art 6, and common law rules of procedural fairness.
According to this article from The Guardian and Press Association, the arguments advanced on behalf of Bourgass and Hussain at the hearing included that fairness means that (i) prisoners should be provided with sufficient information relating to the decision to segregate them to put them in a position to defend themselves in a meaningful way, and (ii) they should also have the opportunity to challenge a decision to segregate them on a long-term basis before an independent body.