England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/03/2010

Lord Justice Aikens :

1. This is the judgment of the court to which each of us has contributed.

The claim

2. This is a claim for judicial review by six men who are all awaiting extradition or deportation from the UK and are currently detained in a Detainee Unit ("DU") at HMP Long Lartin ("the prison"), a high security prison in Worcestershire which accommodates 625 inmates.^[1] The claim arises out of a decision made by Mr Ferdie Parker, ("Mr Parker"), the Governor of the prison on 8 December 2008 ("the decision"). The decision changed the living and working regime of the detainees. Broadly, it confined them to the premises of the DU for all purposes other than healthcare and family visits.
3. The claim has three elements. First, it challenges the decision on the ground that it was irrational, unreasonable, disproportionate or made for illegitimate aims. As part of this claim, it is alleged that even if the original decision cannot be successfully challenged, there is a duty to keep it under review and this has not been done in a proper manner. Secondly, two of the claimants, Mr Adel Bary and Mr Syed Ahsan, who suffer mental illness, claim that the effect of the decision has been to infringe their rights not to be subjected to inhuman or degrading treatment in accordance with Article 3 of the European Convention on Human Rights ("ECHR"). Thirdly, all of the claimants allege that the decision was and remains an infringement of their right to respect of their private and family life, contrary to Article 8(1) of the ECHR, which infringement is not justified as being necessary in a democratic society for the prevention of disorder and crime. The infringement alleged in respect of all the claimants is that the detainees have been unjustifiably removed from normal association within the prison. It is also argued, in respect of Mr Bary and Mr Ahsan that there has been an unjustifiable infringement of their right to the preservation of their mental stability in the broadest sense.
4. The claimants seek an order declaring that the Governor's decision is invalid and an order that it be quashed.

The background to the claim

5. Details of the personal histories of the claimants are set out in Appendix A to this judgment. In summary, none of the claimants have been either accused or convicted of any crime in the UK, although all are accused or convicted of serious crimes (alleged "terrorist" offences in all but one case^[2]) in other countries. All the claimants are detained for one of two reasons: either there are pending applications for their extradition or they are awaiting deportation but their deportation cannot be effected because of the perceived risk of torture in the proposed receiving state. Because of the risk that they represent, the detainees held in the prison pending extradition or deportation are classified as Category A prisoners. Mr Al Fawwaz has been detained the longest of the claimants; that is, since 1998. He arrived at Long Lartin in August 2007.
6. As mentioned above, two of the claimant detainees, Mr Adel Abdul Bary and Mr Syed Tahla Ahsan, suffer from mental illness. There is a dispute about the nature and severity of the illnesses of both men and also on the effect on their health of the change of regime that took place on 9 December 2008. We will have to consider these disputes in relation to the claim for breach of Mr Bary's and Mr Ahsan's Article 3 rights. For the present we note that it is agreed that Mr Bary was in a moderate to severe depressive state prior to the change of regime in December 2008. It is also agreed that Mr Ahsan suffers from Asperger's syndrome. There is disagreement on whether he has also been suffering from a depressive disorder and, if he does, the extent of it.
7. The DU was opened in 2005. It is a self-contained unit within the prison and is capable of accommodating up to 19 men. The six claimants now make up the entire population of that unit, save for one other man.^[3] The DU was created in recognition of the detainees' special status as unconvicted prisoners who were subject to the uncertainty of indefinite detention, whose particular status required that they be treated differently from the prison population as a whole. Therefore the DU does not accommodate any person who is serving a sentence following conviction of a criminal offence in the UK or who has been remanded in custody pending trial for such an offence.^[4] The DU was inspected by HM Inspectorate of Prisons in July 2007 and a report was issued on the inspection in January 2008, called "An inspection of the Category A detainee unit at HMP Long Lartin". The report recognised that special problems arose from the need to hold people for an indefinite period when they were unconvicted of any crimes in the UK, but suspected of involvement in international terrorism and held to be a threat to national security. It concluded that the balance between security and care was, in general, being properly managed. However, it identified one specific shortcoming, which was the provision of sufficient and appropriate physical and mental healthcare support for detainees who were being held in "an extremely isolated and confined environment for an indefinite period, often with a fear, or even experience of torture or mistreatment overseas".^[5] Mr Parker was the Governor of Long Lartin at the time of the inspection and the report, to which we refer again later on in this judgment.
8. Until 9 December 2008 all the detainees were permitted to wear their own clothes and could have property sent to them by post. They could (as far as funds allowed) buy their own food and they could cook their own food. The detainees were entitled to attend the general prison during the day time to participate in education, skills workshops, sporting activities and religious worship. All the present claimants are Muslim and were permitted to attend Friday Prayers with other Muslims in the prison.^[6] The detainees also had access to a full professional weights room and a full sized sports hall in the main prison where the detainees often played group sports. The detainees had access to a full size Astroturf pitch, where they used to play football. In addition, they had access to a gym within the DU itself, which had some equipment in it. Within the DU, during unlock hours the detainees could go to a courtyard where they could tend a herb garden.
9. The trigger for the change in regime in the DU was the transfer of Mr Omar Othman, who is one of the claimants, from HMP Belmarsh to Long Lartin. Mr Othman's history is set out in detail in Appendix A. For present purposes only the following facts need be noted. Since his arrival in the UK in 1993, Mr Othman has been in dispute with the Secretary of State for the Home Department ("SSHD") as to whether he should be allowed to stay in the UK and on what basis. In 2002 the SSHD certified^[7] that he reasonably believed that Mr Othman's presence in the UK was a risk to national security and that Mr Othman was reasonably suspected as being an Al Qaeda linked international terrorist. On 11 August 2005 the SSHD served Mr Othman with a Notice of Intention to Deport on the ground that he was a threat to national security. Mr Othman was detained in Long Lartin between January 2006 and June 2008. Mr Othman was released on bail by the Special Immigration Appeals Commission ("SIAC") on 17 June 2008, following a Court of Appeal decision that his proposed deportation to Jordan would involve a breach of his rights under Article 6 of the ECHR.^[8] However, on 8 November 2008 Mr Othman was detained at his home and taken to HMP Belmarsh. The SSHD considered that if Mr Othman were to be re-admitted to bail, he would be "likely to break any condition on which he was released". The SSHD therefore invited SIAC to direct that Mr Othman should be detained under paragraph 24(3) of Schedule 2 of the Immigration Act 1971. Mr Othman challenged that application, but on 2 December 2008 SIAC determined that Mr Othman's bail should be revoked and that he should be detained.
10. Very shortly after that decision, Mr Parker learnt that Mr Othman was to be transferred from HMP Belmarsh to Long Lartin, where he would have to join the DU. Mr Parker was obliged to decide how to deal with Mr Othman's presence in the DU. It appears that he had no help or guidance on this from HMPS Headquarters and he had very little time to consult others at all. On 8 December 2008 Mr Parker issued a "Notice to Prisoners" which was addressed to the detainees. This stated that from 9 December, the detainees would not be permitted to leave the DU except for healthcare appointments and visits (by the detainees' relatives). In future all activities such as use of the gym, exercise, Friday prayers, education, employment, medical treatment and use of library facilities would take place in the DU. Special arrangements were to be made for visits. We have set out the full text of the Notice in Appendix C to this judgment. No specific reasons for the change in regime were given to the detainees or their legal representatives at the time the changes were made.
11. Since 9 December 2008 there have been some changes to the physical layout of the DU. Details of the present physical layout of the DU and the regime are set out in Appendix B to this judgment. There have also been some changes to the regime. The present position under the new regime is, broadly as follows. First, the detainees still enjoy privileges that are not available to the general population of the prison. In particular, they are permitted to wear their own clothes, (only "enhanced" prisoners in the main prison can do so) and to leave their cells and associate within the DU for up to 9 ½ hours a day. (Prisoners in the main prison have only about two hours "association", ie. free time). Secondly, however, detainees are no longer able to leave the DU, except for healthcare appointments and visits. Thus detainees are not allowed to associate generally with the main prison. There is no access to the main prison gym and sports facilities. However, since 18 June 2009, access to the exercise yard, for up to 1 ½ hours a day, has been restored, although not for the evening session. Thirdly, there is limited access to the prison library, within periods when no main prison inmates are using it. Fourthly, there are some limited education and computer facilities within the DU. There are four computers and a printer. Because the computers are not on – line, (for obvious security reasons), the education facilities are somewhat limited, but an education tutor attends twice a week. Fifthly, the detainees have Friday prayers in the DU itself, rather than with the Muslim members of the main prison. Prayers are conducted by an Imam who is arranged by the prison authorities. Lastly, although the detainees have access to general prison healthcare, there is a dispute, which we cannot resolve, about whether there has been a deterioration in access to outside appointments and obtaining medications.
12. From 22 December 2008 there were monthly meetings between the DU Governor,^[9] Mr John Holland, other members of the prison staff and any detainees who wished to attend. Issues concerning the details of the regime were discussed. Minutes of these meetings were prepared by Ms Jo Stowe, a member of the prison's administrative support team until she was moved to another job in April 2009. At the hearing before us there was some dispute as to the accuracy of the minutes.
13. The minutes of the meetings of 22 December 2008, 21 January 2009, 24 February 2009, 19 March 2009, 18 April 2009, 21 May 2009 and 18 June 2009 were before the court. Mr Holland chaired all the meetings apart from that in April. Mr Othman, Mr Bary, Mr Ahsan and Mr Chambers attended the first meeting. Mr Othman did not attend others, but Mr Ahsan attended some and one or more detainees attended all of them.
14. The key factual dispute about the meetings centred on the minute of the January 2009 meeting, where Jo Stowe, as minute taker, reports:

"The Detainees raised concerns about the new regime and asked if it was going to be reviewed. Governor Holland said there was no plan to review the regime at present but would keep Detainees informed of any changes in the future".

15. Mr Holland was cross-examined about this entry. He said that he had probably been misquoted, because "what I would have meant by that was there would not have been any changes that month to the regime as such".^[10] However, he accepted that there were no plans to change the regime that month.^[11]
16. Mr Holland was also questioned about the minute of the meeting of 24 February 2009. This records him as saying:

"Governor Holland stated that Governor Parker has said that the new regime is not going to change. Mr Ahmad [a detainee]said the regime was going to be reviewed. Governor Holland said he did not know about any reviews".

Mr Holland said that Jo Stowe also misreported what he said on that occasion because there were monthly reviews.^[12]

17. Mr Owen's submission was that once Mr Parker had set the principles of the new regime in his notice of 8 December 2008, he took a decision that those principles could not be altered. Mr Owen submits that this stance is borne out by what Mr Holland said at the monthly review meetings. Mr Owen submitted that a decision that the new regime must continue, coupled with a refusal or failure to review its fundamental characteristics, was, in domestic public law terms, both unreasonable and irrational; further, it was not proportionate to legitimate aims.

The correspondence prior to the present proceedings

18. On 8 December 2008, Birnberg Pierce & Partners, solicitors, ("BP"), wrote to Mr Parker on behalf of Mr Othman, for whom they were already acting on other matters. The letter was headed "Segregation" and requested the immediate transfer of Mr Othman from the "Segregation Unit" to the "Immigration Unit". It also complained that Mr Othman had been denied access to his lawyers and to his family. The letter asked for the reasons for this and stated that Judicial Review proceedings were being considered.
19. On 19 December 2008 BP wrote on behalf of four detainees^[13] (all of whom have become claimants) to Mr Parker as a "matter of extreme urgency" on the question of the regime that had been instituted by the Notice of 8 December 2008. The letter referred to the new regime as "appallingly oppressive and dangerous" and alleged that the regime was made worse by the fact that it was being imposed on "those whose mental and physical health is already precarious". The letter stated it was a formal letter before action as required by the pre-action protocol for judicial review claims. The letter alleged that the new regime violated the four detainees' rights under Article 3 of the ECHR and that it also constituted an unjustified interference with their rights under Articles 6 and 8. The letter further claimed that the regime of keeping the detainees in the DU meant that they were socially isolated from interacting with anyone other than themselves. Whilst it was acknowledged that the prison had to comply with Prison Rule 7(2)(a),^[14] it alleged that the lack of association was contrary to Prison Rule 7(4).^[15] Other allegations (now immaterial) were made. The letter demanded the reinstatement of the regime as it stood before 9 December 2008.
20. Mr Parker responded in a letter to BP dated 25 December 2008.^[16] He made the following points: (i) he did not accept that the current regime was "positively dangerous" as BP had sought to suggest. (ii) He stated that the aim of the regime was "…to ensure not only your clients but the others in the unit remain safe and secure despite whatever events might take place elsewhere". (iii) Equally, Mr Parker did not "..wish to have the position where media allegations, unfounded or not, are given room to develop and again lead to difficulties for your clients". (iv) Therefore, a decision was made to "…develop a regime that separated your client (sic) from mainstream prisoners". Mr Parker stated that he understood that the separation of the DU from the rest of the prison would meet the wish expressed by BP in a letter dated 1 December 2008 regarding Mr Othman that asylum seekers should be accommodated separately from convicted criminals or prisoners on remand and that there should be no "co – mingling" of the groups.^[17] (v) The regime was "continuing to be developed". (vi) The benefit of separation was that it was possible to "develop an enhanced regime specific for [the detainees'] needs". Mr Parker instanced the ability to have clothes sent in to detainees, to have greater access to computer facilities, being out of their cells for the greater part of the day and having "enhanced education access". (vii) The allegations of breaches of Articles 2, 3 and 8 of the ECHR were rejected.
21. On 7 January 2009, Mr Nigel Newcomen, HM Deputy Inspector of Prisons, wrote to Mr Parker about the new regime, of which he said that he was unaware. The letter stated that the changes would appear "on the face of it to increase significantly separation and, potentially, isolation, of these detainees and to increase the risks of mental and physical health referred to in our July 2007 review…".^[18] The letter expressed surprise that the Inspectorate had not been informed of the "significant change" now implemented, particularly as it was soon to publish the recent inspection report.
22. Mr Parker replied the same day. He said that the current changes had been prompted partly by "the demand from solicitors that their clients should be protected from convicted prisoners, prisoners held on remand and that there should be no co-mingling of these groups". He attached the correspondence. Mr Parker said that there were also concerns about "maintaining the safety of some high profile inhabitants of the unit and to managing issues of radicalisation of prisoners". He said that the object of the changes were: (a) to ensure the DU operated on a discrete basis; (b) that movement was strictly supervised and controlled; and (c) that the prison was in a position "to rebut media allegations, unfounded or not, about the influence, activities and position of a particularly high profile person detained here". That was intended as a reference to Mr Othman.

The Judicial Review proceedings and the hearing

23. The claim for judicial review was issued on 10 June 2009, together with an application for urgent consideration. On 12 June 2009 Sir Thayne Forbes granted permission and expedited the hearing of the substantive application. During the course of September and October 2009 the parties filed evidence and various orders were made, including orders that Mr Parker and Mr Holland should be cross- examined on their witness statements. The hearing was originally due to take place in September 2009 but, after two adjournments, it was re-fixed for hearing in the week of 18 January 2010.
24. By the time of the hearing before us the parties had served a large amount of evidence. The main evidence consisted of: (i) witness statements from the claimants, including two group witness statements; (ii) a witness statement of Gareth Pierce of BP; (iii) psychiatric reports on Mr Bary by Dr Robertson^[19] and on Mr Ahsan by Dr Deeley;^[20] a joint psychiatric report by both Dr Robertson and Dr Deeley on the DU and also a further psychiatric report of Dr Sophie Davison,^[21] all prepared on behalf of one or both of the claimants Bary and Ahsan; (iv) witness statements of Mr Parker, Mr Holland, Mr Steve Wagstaff,^[22] and various other prison officers at the prison; (v) a psychiatric report of Dr Ian Cumming^[23] on Messrs Bary and Ahsan and general issues of mental health of detainees, dated 10 January 2010, prepared on behalf of the Respondents; (vi) various reports, including the "Acheson" report,^[24] a psychiatric report by Dr Adrian Grounds,^[25] dated January 2010 on the effect of small group isolation in the DU at Long Lartin, and the Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ("the CPT");^[26] and (vii) various contemporary documents, including letters between the parties, the inmate medical records of the claimants and the minutes of the monthly meetings of the DU, referred to above.
25. The hearing before us began with the cross examination by Mr Howell QC, for the respondents, of Mr Zachery Tracey, whose real name is Miguel Celestino Sanchez. He had been a detainee in the DU. Ultimately his evidence and that of Father Johnny Moore, a Catholic priest who worked part time in the prison, were not relevant because an issue between the parties disappeared. We need say no more about it. Mr Parker and Mr Holland were cross – examined by Mr Owen QC for the claimants. Once the oral evidence had been completed we heard oral submissions from counsel, which helpfully supplemented the written submissions that had already been submitted by the parties. We reserved judgment.

The legal framework

(1) Common law principles

26. Section 12(1) of the Prison Act 1952 provides that a prisoner may be lawfully confined in any prison. Section 12(2) confers on the Secretary of State a broad discretion to commit prisoners to such prison as he may from time to time direct and also to remove a prisoner from a prison to which he is confined to another prison. Section 47(1) of that Act provides that the Secretary of State may make rules for the regulation and management of prisons and remand centres and "…for the classification, treatment, employment, discipline and control of persons required to be detained therein".
27. Rule 45(1) of the Prison Rules 1999, which is headed "Special Control, Supervision and Restraint and Drug Testing", gives a prison governor the power to remove a prisoner from association with other prisoners, for the purpose of the maintenance of good order or discipline, or in the interests of the prisoner. But this power is aimed at putting the prisoner into solitary confinement and does not contemplate the kind of regime set up in this case.
28. Mr Owen accepted that the authority given to detain a person within a prison must, by necessary implication, confer authority to control the movements of that (and other) individuals for the purposes of security, control and discipline.^[27] Yet prisoners retain legal rights appertaining to the nature and conduct of their incarceration.^[28] Therefore, o on the first head of the claim, Mr Howell accepted that operational decisions of a prison governor, such as that taken by Mr Parker and promulgated in the Notice to Prisoners of 8 December 2008, are subject to public law principles. He therefore accepted that the decision is capable of challenge on grounds that it was irrational or unreasonable or disproportionate or not made for a legitimate purpose.^[29] The argument is whether the claimants can succeed on the facts of this case, given all the circumstances.

(2) Article 3 of the ECHR

29. It is, of course, common ground that HMPS, through the prison and Mr Parker, are in the position of being "public authorities" within the meaning of section 6 of the Human Rights Act 1998 ("HRA"). It is also accepted that they must not act in a way that would be incompatible with the Convention rights that are given effect by the HRA: see section 6(1) of that Act. It is accepted by Mr Howell that there is nothing in primary or secondary legislation which requires HMPS or its servants or agents to act incompatibly with the claimants' Convention rights whilst HMPS is exercising its express or implied power to control the claimants' location or movement within the prison. It is also accepted that prisoners do not lose their fundamental human rights by virtue of being imprisoned or detained: see Hirst v United Kingdom.^[30] Therefore if there is to be any restriction on Convention rights of prisoners or detainees, that has to be justified in each individual case. This justification can flow from the "necessary and inevitable consequences of imprisonment" or from "an adequate link between the restriction and the circumstances of the prisoner in question". But the justification cannot be based "solely on what would offend public opinion": see the judgment of the Grand Chamber in Dickson v United Kingdom.^[31]
30. Article 3 of the ECHR provides: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". The cases establish a number of general principles. First, Article 3 is absolute. It imposes a negative obligation upon states to refrain from inflicting serious harm, but also a positive obligation not to adopt practices which expose individuals to such ill-treatment as falls within Article 3. Secondly, it is for the applicant to establish a breach of the prohibition and the standard of proof for that is "beyond reasonable doubt". Thirdly, a breach will not be established unless the conditions and regime in which the prisoner or detainee was held attained a minimum standard of severity. Fourthly, the assessment of that minimum standard depends on the circumstances of each case, such as the duration of the treatment, its physical or mental effects and, in some cases the sex age and health of the victim.^[32]
31. Both counsel referred us to the ECtHR decision of Van der Ven v Netherlands,^[33] and submitted that it gave useful guidance. The case concerned intrusive strip searches. The ECtHR found that the detention and the general regime under which the applicant had been held were not in breach of Article 3. At paragraphs 48 – 51 the court confirmed the following additional points. First, in deciding whether Article 3 has been breached, the purpose of the treatment is important; in particular whether its purpose was to humiliate or debase the victim.^[34] Secondly, in order to decide whether a detention constitutes inhuman or degrading treatment, both the cumulative effect of the conditions and the specific allegations of the victim have to be considered.^[35] Thirdly, the fact of detention in a high security prison facility, either on remand or following conviction, cannot by itself be a breach of Article 3. But the court does have to examine the effect of the regime on the person concerned. A state must:

"ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured".^[36]

Lastly, the court stated that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of inhuman treatment which cannot be justified by the requirements of security or any other reason. But the removal from social association with other prisoners for (eg.) security or protection reasons does not of itself amount to inhuman or degrading treatment. In order to decide whether such treatment breaches Article 3:

"...regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and it effects on the person concerned".^[37]

32. Even harsh regimes may not be in breach of Article 3, if the regime is justified by the particular risks presented by the prisoner. Thus restrictive regimes have been upheld in the case of high security prisoners who pose serious security risks. So in the case of Ocalan v Turkey,^[38] the applicant was the leader of the Kurdish separatist group known as the PKK. He was kept in solitary confinement on a remote island, where he had contact only with prison staff, although he had access to books, newspapers and a radio. He saw a doctor every day and lawyers and his family once a week. The Grand Chamber found that the general conditions in which he had been detained had not "thus far reached the minimum level of severity required" to come within Article 3.
33. Whatever conditions are justified, prison authorities are under an obligation to protect the mental health of prisoners. Thus in Keenan v United Kingdom,^[39] the young prisoner suffered from mental illness, probably schizophrenia. He had acute psychotic episodes with paranoia. His behaviour in prison was disturbed with aggressive and violent outbursts. He showed increasing signs of anguish and desperation and was known to be potentially suicidal. Nine days before the end of his sentence he was ordered to serve seven days segregation and a further 28 days extra sentence for a breach of prison discipline. Whilst serving the additional term he committed suicide. The court found that, in the circumstances, this was inhuman and degrading treatment and punishment within Article 3.^[40]
34. These and many other Strasburg cases have been examined and quoted many times in domestic cases, most particularly in R(Munjaz) v Mersey Care NHS Trust^[41]. We note that case further when considering the law on Article 8.
35. In a case in the Divisional Court involving two of the applicants in this case, R (Bary and al Fawwaz) v Secretary of State for the Home Department^[42], the applicants challenged an order for their extradition to the USA to stand trial there for alleged terrorist offences. One argument was that if they were convicted they would face the harsh regime of the Federal "Supermax" ADX Florence Prison in Colorado. The harsh conditions of that prison are described in detail at paragraphs 24 – 28 of Scott Baker LJ's judgment. He concluded:

'Whether the high Article 3 threshold for inhuman and degrading treatment is crossed depends on the facts of the particular case. There is no common standard for what does or does not amount to inhuman or degrading treatment throughout the many different countries of the world'.

It was held that the conditions would not be in breach of Article 3.

36. There is, therefore, no test of universal application; it all depends on the facts of the individual case. We must examine, among other matters: the physical conditions in which the detainees are held; the regime to which they are subject; the extent to which they are segregated or isolated from other prisoners; the risk they present to staff within the prison; the risk of escape and the dangers which they would present to the public and to the public interest if they were to escape; the risks they present to themselves, by way of self-harm; the risk they present to other prisoners, not in this case so much by way of direct violence but by way of propagandising or 'radicalising' them; whether the risks which they present justify and/or are proportionate to the conditions and regime in place; whether the conditions or regime have been imposed for the purpose of humiliating, embarrassing or punishing them or for some other base or sinister motive; whether and in what respects the detainees are vulnerable, whether by reason of existing physical or mental condition or otherwise; the length of time to which they are subject to these conditions and to this regime; the contact which they have with their families; the medical and psychiatric services which were made available to them and the effect that the conditions and regime have had upon them and their physical and mental state of health. It is for the court to balance all these matters, before deciding whether the applicant has proved, beyond reasonable doubt, that there has been a breach of Article 3.

Article 8 of the ECHR.

37. Article 8 of the ECHR provides:

"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 well-being 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."

38. The scope of the positive obligation imposed upon contracting states by Article 8 that they must respect a person's private and family life has received much attention in English decisions and in decisions of the European Court. Dickson v United Kingdom,^[43] was an Article 8 case. As already noted, the Grand Chamber of the ECtHR confirmed that a person retained his Convention rights upon imprisonment, so that any restriction on those rights must be justified in each individual case.
39. There are many particular aspects of private and family life which the ECtHR has held will fall within the scope of Article 8, which has been described as protean. The notion of "private life" is broad and is not susceptible to definition. It may, depending on the circumstances, cover the "moral and physical integrity of the person". Article 8 might be able to afford protection in relation to conditions during detention which do not attain the level of severity required by Article 3.^[44]
40. As long ago as 1981, in the case of McFeeley v UK,^[45] the European Commission of Human Rights stated that the concept of private life under the Convention embraced, to a certain degree, the right to establish and to develop relationships with other human beings, especially in the emotional field of the development of one's own personality. The Commission held that this element of the concept of privacy extended to the sphere of imprisonment and that the claimants' removal from association in prison in that case constituted an interference with their right to privacy in this respect.
41. In R v Munjaz v Mersey Care NHS Trust,^[46] the House of Lords was prepared to hold that seclusion of a mental patient, if improperly used, might violate a patient's rights under Article 8(1).^[47] It is clear from these two cases, therefore, that issues of seclusion and removal from association in the context of a prison or a secure mental hospital can involve an interference with Article 8(1) rights.
42. In R (Wood) v Commissioner of Police of the Metropolis,^[48] the police, under orders from the Police Commissioner, had taken photographs of the claimant in the street as he had left a meeting at a hotel. The police had also tried to establish the claimant's identity from those photographs. The question for the Court of Appeal was whether that police action was an unjustified infringement of the claimant's Article 8(1) rights. All three members of the Court held that the action was an infringement. Dyson LJ and Lord Collins of Mapesbury held that it was unjustified. Laws LJ dissented on that question. Laws LJ analysed extensively the nature of the rights covered by Article 8(1). He noted that in the ECtHR's decision in S v United Kingdom,^[49] the Court confirmed that the concept of "private life" in Article 8(1) covered the "physical and psychological integrity of a person" and thus embraced "multiple aspects of the person's physical and social identity". Having reviewed other cases, Laws LJ concluded that the private life rights covered by Article 8(1) embraced the notion of "personal autonomy". "Personal autonomy" made an individual the master of "all those facts about his own identity, such as his name, health, sexuality, ethnicity, his own image, of which the cases speak".^[50] Laws LJ held that this must embrace the right to the preservation of mental stability, in the broadest sense.
43. The interference with a right which has been held to be within the scope of Article 8(1) has to have reached a "certain level of seriousness" before it brings the operation of the Convention into play, however. Moreover, before Article 8(1) can be invoked, the claimant must demonstrate that, on the facts, he enjoys a "reasonable expectation of privacy" with regard to a relevant sense of privacy.^[51] If those tests are satisfied so that there is a prima facie interference with an Article 8(1) right, then a court will look to the state or public authority concerned for a justification of what would otherwise amount to a violation. There will be a violation unless the interference is in accordance with the law; and the interference is "necessary in a democratic society" for one of the matters listed in Article 8(2). That means that the interference has to be proportionate to the legitimate aim pursued. Furthermore, the national authority concerned must provide reasons that are relevant and sufficient. ^[52] In deciding whether the interference with the Article 8(1) right is necessary in a democratic society for a legitimate aim and so is proportionate, the court must have regard to (a) the right in issue; (b) its importance to the individual; (c) the nature of the interference; and (d) the object of the interference.^[53] Whether an interference with a Convention right is proportionate is a fact sensitive question.^[54] In the present case it is clear that we must consider the impact of the interference of the rights on the individuals concerned, ie. the detainees.

The arguments of the parties

44. The argument of Mr Owen on the first issue is that several reasons have been given by Mr Parker for the change in regime upon the arrival of Mr Othman. Those arguments are, he submits, inconsistent, irrational and unreasonable. The court cannot be sure, on the disclosed material, what the true reason was for the decision to change the regime. Therefore the decision must be quashed. Mr Howell submits that Mr Parker's decision was both reasonable and rational. He was concerned about the possible effect that Mr Othman might have on young Muslim men in the prison. The SIAC had already concluded that Mr Othman had been engaged in radicalising young Muslims and for inciting others to terrorist activities. If he were to be allowed to associate in the main prison, he might well engage in those activities there. Moreover, it would be easier for him to smuggle matter out of the prison which would encourage radicalisation and incitement. Further, it was reasonable to suppose Mr Othman might be the subject of an attempted escape plan. Therefore, in order to ensure good order within the prison and to curtail the possibility of escape and other deleterious actions outside, Mr Othman had to be maintained within a closed detainee regime. That would only work if the other detainees were also subjected to the same regime. The regime was necessary and proportionate in all the circumstances.
45. Mr Owen also criticised the way that the review meetings were handled. He submitted that there was never any serious intent on Mr Parker's side to change the regime, whatever issues might be raised at the meetings. Therefore, the detainees never had an effective opportunity to make any representations about the effect of the new regime on them. Mr Howell submits that we should accept the evidence of Mr Holland, who said that they were genuine review meetings and that there were proper opportunities to make representations.
46. The second issue is whether the change in the regime breached the rights of Mr Bary and Mr Ahsan under Article 3 of the ECHR. Mr Owen submits that the new regime reached the minimum level of severity of inhuman or degrading treatment so far as those two claimants were concerned because of the circumstances that particularly affected them, viz. their pre-existing mental conditions, which made them particularly vulnerable to the effect of the new regime put in place from 9 December 2008. Mr Howell submits that Mr Bary and Mr Ahsan have an evidential burden to prove that the level of ill-treatment has crossed the threshold of severity required before it can be said that their Article 3 rights have been infringed. Given the circumstances, including their mental health condition, they had, on the evidence, failed to do so.
47. On the third issue, Mr Owen submits that the level of confinement imposed by the change in regime is sufficiently serious to infringe two Article 8(1) rights of the claimants. First, their right to develop relationships with other human beings; and, secondly, their right to the preservation of mental stability in the broadest sense. The second aspect is more pressing in the case of the two claimants suffering from mental health problems, ie. Mr Bary and Mr Ahsan. Mr Owen submits that the present restrictions are not necessary for the prevention of disorder or crime or the protection of the rights and freedoms of others within Article 8(2). Moreover, even if the original decision was justified, the decision has to be kept under review, in order to ensure protection against arbitrary interference. Such a review must assess whether the original measures remain proportionate for legitimate aims or whether they can be modified. The review must involve those affected to a degree sufficient to safeguard their interests. He submits that the reviews have failed to make such an assessment or to take proper account of the views of the detainees. The current regime, even as modified since June 2009, cannot be justified.
48. Mr Howell accepts that a person who is detained has a right, under Article 8(1), to establish relations with others. The right is not unlimited, but he accepted that if it is infringed it will require justification. However, the extent of the right to establish relations had to be judged against the background that the claimants were legitimately detained and legitimately classified as Category A. The restrictions imposed by the new regime were justified; they were proportionate and reasonably necessary to achieve the aims that led Mr Parker to make the decision on change of regime in the first place. Mr Howell accepted that Mr Parker's desire to avoid any press reports that suggested that Category A detainees were having a cosy life was not legitimate, but that will not matter if the other aims were legitimate and the action taken was proportionate.
49. Mr Howell also accepted that there was a right under Article 8(1), to maintain mental stability. He accepted that if that was infringed it would require justification. However, on the facts here, he submitted that there is no infringement of the Article 8(1) rights of the detainees generally, or of Mr Bary and Mr Ahsan in particular. Alternatively, if Article 8(1) rights were infringed, that was justified in the very particular circumstances of this case. The reviews were genuine and the current regime remains a proportionate response to legitimate aims within Article 8(2).

Issue One: Was the decision of Mr Parker unreasonable, irrational, taken for an improper purpose or otherwise challengeable on domestic public law grounds?

The evidence

50. First, it is necessary to consider the evidence of what Mr Parker has said in various letters and what he has said in his evidence. Mr Owen submits that the reasons given for the change in regime after the arrival of Mr Othman at the DU have altered many times. The reasons given for the change in regime in Mr Parker's letter to BP on 25 December 2008, ie. to protect the detainees "despite whatever events may take place elsewhere" and in order to pre-empt hostile media comment, are not now relied on as valid reasons for the change.
51. We have already referred to Mr Parker's letter dated 7 January 2009 to Mr Newcomen, HM Deputy Chief Inspector of Prisons. That identified four reasons for the change in regime. First, the demands of the detainees' solicitors that there be no "co-mingling". Secondly, the concerns about safety of the high profile inhabitants of the DU. Thirdly, the need to manage issues of radicalisation of prisoners. Fourthly, to ensure that the prison could rebut possible media allegations about the influence and activities of Mr Othman.
52. In the defendants' amended grounds for contesting the claim,^[55] at paragraph 5, it states that the change in regime was implemented as a result of Mr Othman's arrival at the DU. It is said that this caused Mr Parker to reassess "the risks imposed by the detainees". The paragraph continues:

"Governor Parker was particularly concerned about the potential for Mr Othman to become involved in the planning and/or incitement of terrorist attacks from within the prison. In order to minimise this risk he decided that it was necessary to prevent the detainees mixing with the general prison population (see statement of Governor Parker at paragraphs 22 – 29). The regime change was implemented to achieve this aim".

53. It is to be noted that this paragraph does not refer to either a desire to prevent co-mingling or a need to pre-empt well or ill-founded media comments on the detainees' regime. Nor does it suggest that a reason for the change was the need to protect detainees from others.
54. Paragraphs 22 to 29 of Mr Parker's first statement makes several points. First, Mr Parker states that he was informed by colleagues at HMP Belmarsh that they had been experiencing problems with Mr Othman on his return there. He says that they told him that Mr Othman had been trying to foment trouble in the High Secure Unit where he was being held and that he was inciting other prisoners to challenge lawful authority.^[56] Secondly, Mr Parker decided that he would need to make several changes to the detainee regime to "minimise the potential risk posed" by Mr Othman. This would necessitate a regime where all communications, except those subject to legal privilege, could be monitored and where his influence could be restricted to a minimum of people, so as to "minimise his potential to become involved in the planning of any crime whether inside the prison or elsewhere".^[57] Mr Parker states that he was particularly concerned about Mr Othman's possible access to mobile phones if he was able to go into the main prison, where they were frequently smuggled in. If Mr Othman had access to mobile phones then, Mr Parker thought, that "could result in unmonitored messages being passed out of the prison" so creating a "potential for Mr Othman to become involved in the planning/incitement of terrorist attacks".^[58]
55. Thirdly, Mr Parker sets out the information which he says he had received which led him to the conclusion that Mr Othman was a danger. This is contained in paragraph 25 of Mr Parker's first statement which we must set out in full:

"25. The change of regime was brought about due [to] the information I received that Mr Othman was considered to be such a potential risk in the community that the judge at the SIAC hearing determined that he should be returned to custody despite his stringent bail conditions (which included a 22 hour curfew). I was concerned about his inability to influence events, both inside and outside the prison. I had increasing concerns about his significant influence on a large and increasing group of young men serving long sentences at Long Lartin in addition to his disruptive behaviour and incitement of other prisoners as evidenced by the events at Belmarsh. My assessment is that there is a real possibility of radicalisation of the mainstream population if Mr Othman, who is held in high esteem by some Muslim prisoners, is allowed to integrate. I am aware that Mr Othman is considered to be a man of considerable influence throughout the Middle East. My fears are confirmed by the fact that Mr Othman's name has been used by terrorist groups holding hostages, demanding his freedom in exchange for their lives (see, for example, a news report relating to the killing of Edwin Dyer, which I attach at Exhibit FP1)."

56. Fourthly, Mr Parker states that he discussed the matter with Mr Steve Wagstaffe, then the Director of High Security Prisons in HMPS.^[59] His evidence also refers to a letter that he subsequently received from the Assistant Chief Constable, Specialist Operations of West Mercia Constabulary dated 30 June 2009. This letter outlined West Mercia Constabulary's concerns that if the detainees at the prison were allowed to mix with main stream prisoners, the risk to national security would be increased. However, this letter could not itself have had an influence on Mr Parker at the time of his decision because it was only written six months later.^[60]
57. Fifthly, Mr Parker comments on Mr Othman's behaviour. It is not clear from the way in which paragraph 27 of the statement is drafted whether this was a view that Mr Parker had reached about Mr Othman's behaviour prior to his decision or it is a conclusion Mr Parker came to as a result of observing Mr Othman in the prison over the period December 2008 to July 2009 when the statement was made. Mr Parker refers to a confrontation that occurred when Mr Othman was in the prison in September 2006. Mr Parker does not say whether he had that incident in mind when reaching his decision. Mr Parker also refers to another incident which occurred in June 2009, some six months after the decision was made. That could not have affected his decision in December 2008.
58. Sixthly, Mr Parker states that he considered carefully the possible impact of the change in regime on the other detainees and discussed this with Mr Holland and Mr Wagstaffe. He says that, at the time, he thought the change would only last for months because of the uncertain position of Mr Othman. He considered in particular the fact that the change would mean that detainees could not attend Friday prayers in the main prison. So he engaged an additional Imam to conduct prayers in the DU.^[61]
59. Lastly, Mr Parker accepts that the changes in regime could have a psychological and demoralising effect on "some of the individuals". It is not entirely clear whether he had that consideration in mind when he made the decision. Mr Parker states that the influence of Mr Othman and "U"^[62] on the other detainees is significant. The possibility of either of them communicating with the rest of the prison via other detainees in the DU is "too much of a risk to allow me to treat any of the detainees differently in permitting them to have access to the general prison population".^[63] Mr Parker does not say whether those considerations were actively borne in mind at the time he made his decision.
60. Mr Parker has made three further witness statements. In the most recent, dated 8 October 2009, he states^[64] that in his decision to make the changes in regime he considered all the matters set out above. In particular he says that he considered the concerns raised in his letter of 25 December 2008, his letter of 7 January 2009 to Mr Newcomen, the safety of the detainees and the risks posed by Mr Othman if permitted to associate with the mainstream population in the prison. He also considered the representations of BP that there should be no co-mingling. However, he does not mention the issue of pre-empting possible criticisms from the press and other media.
61. Mr Owen cross – examined Mr Parker on his reasons for making the decision. Mr Parker accepted that none of the reasons put forward in paragraph 5 of the defendants' Grounds for Defending the Claim appeared in his letter of 25 December 2008; in particular the reference in the former to the danger of Mr Othman becoming involved in the planning and/or incitement of terrorist attacks from within the prison.^[65] Mr Parker stated that part of the reason for the decision to change the regime had been the letter from BP dated 1 December 2008, written before the decision to send Mr Othman to the prison had been taken.^[66] Mr Parker also accepted that, at the time, he had concerns about the effect of the change of regime on the detainees' mental health, but he stated in the letter of 25 December 2008 that he was improving their environment.^[67]
62. Mr Parker accepted that there was no particular intelligence about possible confrontation between detainees and other "very dangerous prisoners"^[68] in the prison which influenced his decision on the change of regime in December 2008.^[69] Mr Parker also accepted that, at the time just before he made the decision to change the regime, he had not received any specific intelligence briefings about Mr Othman and the danger of radicalisation, whether from the Extremism Monitoring Unit within the High Security Estate in HMPS or elsewhere. Nor did he receive any in early 2009.^[70] He accepted that he did not receive advice that he should isolate the detainees, nor was there any other specific intelligence or statements from HMPS Headquarters which affected his decision.^[71] Mr Parker accepted that a desire to pre-empt possible comments in the press and other media that the detainees had a "cosy life" would not be a good reason for imposing the change in regime.^[72] He also accepted that the possibility of general problems from the detainees as a whole was not a reason for his decision.^[73] Mr Parker said that the main reason for the change was that Mr Othman had been disruptive at HMP Belmarsh; he would not be "best pleased" to be returned to Long Lartin and so he (Mr Parker) had to make sure that there was no effect on the prison, particularly as there were 15 other prisoners in the prison who had been convicted of serious terrorist offences.^[74] However, he also accepted that, for the period when Mr Othman was last detained at the DU in the prison during 2005 – 2008, there was no record of him going into the main prison to radicalise prisoners or incite others to commit terrorist acts or attempting to do so.^[75] Mr Parker also accepted that because Mr Othman was his main concern and it was that concern which led to the decision to change the regime, then if, for some reason, Mr Othman were to be released on bail again, it would be likely that the regime would revert to its status before Mr Othman arrived.^[76]
63. However, in re-examination, whilst Mr Parker reiterated that he had no evidence that Mr Othman had been involved in planning or inciting terrorist acts or in radicalisation of young Muslim prisoners at Long Lartin, he was concerned about those issues. That was because of Mr Othman's status as an iconic figure in the jihadist movement and because he is a focus for those who wish to adopt that lifestyle.^[77] Mr Parker stated that if his concerns about possible "external events" (ie. attacks or threatened attacks by Muslim extremists) were to materialise then it would have an effect on the prison, because there was instant access to the television and other media there. That might lead to tension between Muslim prisoners and their supporters and others who took a different view of things.^[78]
64. We must also refer to the statements of Mr Wagstaffe. In his first statement of August 2009, Mr Wagstaffe confirms that he had discussions with Mr Parker about the change in regime following the letter of 7 January 2009 from Mr Newcomen to Mr Parker. He also had further discussions with Mr Parker in February 2009. However, that witness statement does not confirm any discussion with Mr Parker before the Notice to Prisoners on 8 December 2008.
65. In a second witness statement of October 2009, which Mr Wagstaffe made after Mr Parker had made his fourth witness statement,^[79] he confirms that he did have discussions with Mr Parker on 2 and 10 December 2008 about the change in regime, ie. just before and just after the change. Mr Wagstaffe does not give details of the discussions, save to say that he recalls that Mr Parker was concerned "for the safety of those in the unit and the risks to the main population of mixing with the Unit residents".^[80] At paragraph 26 of Mr Parker's first witness statement it is implied that various possible options were discussed with Mr Wagstaffe before the decision was taken by Mr Parker, although the statement is opaque about precisely what was discussed at what meeting. In cross – examination, Mr Parker accepted that, in their conversations, Mr Wagstaffe did not specifically mention concerns about Mr Othman planning or inciting terrorist attacks from inside the prison. However, Mr Parker insisted that this had been mentioned by him (Mr Parker) to Mr Wagstaffe.^[81]
66. Mr Parker was not an entirely satisfactory witness. In particular, we find that he was more reluctant than he should have been to concede some matters which he ought to have done when questioned by Mr Owen. He ought to have been more ready to concede that the basis on which he has justified the change in regime has changed from those in the first explanation in his letter of 25 December 2008 to BP to the final reasons he has put forward. Ultimately the reasons relied on are that when Mr Othman became a detainee again, it raised concerns that if he was allowed general association in the main prison there was a significant danger that he would or might (a) radicalise young Muslim prisoners in Long Lartin and (b) plan and/or incite terrorist attacks from within the prison. Moreover, it was only really as a result of the sustained cross-examination of Mr Parker by Mr Owen that it became clear that (a) there was no hard evidence or specific intelligence for those concerns at the time of the decision on 8 December 2008^[82] and (b) the rationalisation for those concerns had been refined over the period between January 2009 and the hearing before us.

Conclusions on the facts

67. From all the written material, including the witness statements of Mr Parker and Mr Wagstaffe and the oral evidence of Mr Parker, we draw a number of conclusions. We consider first the position of Mr Parker. We conclude, first, that the decision to introduce the new regime was taken by Mr Parker alone. Secondly, that, between Mr Parker's letter to BP of 25 December 2008 and the time of his cross-examination, there has been a change in the emphasis in Mr Parker's reasons for the change in regime. Thus, at the outset he was clearly concerned with the possibility of allegations in the press and other media that either the detainees were having a "cosy" time or that they could dictate the terms of their detention regime. It is now accepted that this could not be a valid reason for changing the regime. Also, although Mr Parker stated in his letter of 7 January 2009 to Mr Newcomen that one reason for making the change in regime was "the demand from solicitors that their clients should be protected from convicted prisoners", we do not accept that this was an important factor in the equation. The fact that BP had made a request in its letter of 1 December 2008 that Mr Othman be returned to the previous regime in Long Lartin DU rather than continue in Belmarsh was a point that Mr Parker could usefully use as a reason for making the decision, but in cross examination he impliedly accepted that it was not a principal reason for the change in regime.^[83] It was clearly not a good reason for making the decision, although Mr Parker did not accept that was so. Also, we are satisfied that the suggestion, in paragraph 7 of Mr Parker's first statement, that there was a potential for confrontation between the detainees (in general) and "very dangerous prisoners" in the main prison, was not a significant reason for the decision. Mr Parker accepted in cross examination that this was not the reason for the change in regime.^[84]
68. The third main conclusion we draw from the evidence on Mr Parker's position is that, at the time of the decision, Mr Parker did indeed have a "worry" or "concern" that Mr Othman might plan or incite terrorist attacks from within the prison if he were permitted association with the general body of prisoners. This "worry" or "concern" was not based on any hard evidence or specific intelligence, about Mr Othman specifically. Such intelligence as Mr Parker had was, it appears, only generally related to terrorism.^[85] The concern did not arise from information that Mr Parker had about Mr Othman's activities during the previous period of detention at the prison between 2005 – 2008.^[86] It did not derive from the revocation of Mr Othman's bail by the SIAC. Mr Parker also accepted in cross - examination that his concern did not arise from the terms of the judgment of the SIAC decision to revoke bail.^[87] Nor did it come from any specific Security Services briefings after the revocation of bail and before Mr Othman's return to the prison, because he had none at that time and, indeed, he had no "Othman specific" briefings in early January 2009.^[88] Mr Owen accepted,  as is well known,  that mobile phones can be and are smuggled into prisons, even maximum security ones such as Long Lartin.   We are satisfied that Mr Parker would have had legitimate concerns about Mr Othman's ability to get hold of mobile phones in the main prison and his ability to use those to pass unmonitored messages out of the prison,  more or less at will.
69. We further find that, before he made the decision to change the regime, Mr Parker was concerned that Mr Othman's reputation as an iconic figure in the jihadist movement was such that if he had contact with young Muslims in the prison, he could inspire them and possibly radicalise them.^[89] This is borne out by Mr Parker referring to this factor in his letter of 7 January 2009 to Mr Newcomen. We find that this concern was not based on any specific evidence, or intelligence that suggested that Mr Othman might do this, other than the specific findings of the SIAC decision of February 2007,^[90] which we accept Mr Parker must have had in mind. We are satisfied that Mr Parker's concern was genuine and that it was arrived at as a result of three things in particular. First, his general experience as a prison Governor who had experience in running high security jails for some time. Secondly, the conclusions of the SIAC judgment of February 2007. Thirdly, the fact that possible radicalisation of main stream prisoners by detainees had been recognised as a risk in the Report of the inspection of the DU by HM Inspectorate of Prisons in January 2008.^[91] The prison had about 620 prisoners and about 130 to 140 of those were young Muslim men.^[92] Although Mr Parker himself said, graphically: "we have to act, often on our gut feeling on what's going on and what is likely to happen",^[93] we find his decision was not simply based on a "gut feeling". Indeed, Mr Parker himself emphasised, just after the answer quoted, that his decision was not based on just a "gut feeling".^[94] The latter answer was justified, because the decision was made on the bases we have just indicated. It was, therefore, based on professional judgment and operational experience, backed up by specific findings of SIAC and identified risks. Although Mr Parker did have concerns about the possible influence of all the other detainees (other than Mr Chambers) on young Muslim prisoners in the main prison,^[95] we find that was not a major factor in the decision. If it had been then he would have made changes to the regime before Mr Othman arrived.
70. We accept, on Mr Parker's evidence, that if there were to be any effective restriction on Mr Othman's ability to have unmonitored contact with other prisoners in the main prison and access to the outside world (via mobile phones), then either he alone had to be kept under the regime now in place, or such a regime had to apply to all detainees. Mr Owen did not submit that the regime should have been applied to Mr Othman alone. We accept Mr Parker's evidence that, at the time he made the decision, he genuinely believed that the new regime he imposed would only be needed for a "matter of months, until one got a clearer picture on the intelligence available at the time".^[96]
71. Mr Parker's evidence was that he discussed the likely impact of Mr Othman's arrival at the prison with Mr Holland.^[97] Mr Owen put it to Mr Holland, in cross-examination, that Mr Parker had not consulted Mr Holland on the proposed change in regime. Mr Holland said that he was consulted about Mr Othman's arrival, but he also said that he was not privy to all the information (security or otherwise) surrounding Mr Othman's return to the prison.^[98] We accept that evidence. Mr Holland was asked for his views, but the decision on the form of the new regime was taken by Mr Parker alone, not with Mr Holland.
72. As well as the evidence concerning the background of the detainees and Mr Othman in particular and the situation immediately before his return to the prison, we have to bear in mind other, more general, evidence and the conclusions that can be drawn from it. First, as already mentioned, there is the report of HM Inspector of Prisons on the DU, published in January 2008. The Introduction to the report by Anne Owers, HM Chief Inspector of Prisons, acknowledged that "holding a small number of people in a severely restricted environment for an indefinite time carries a number of risks both to security and to the mental and physical health of those held".
73. The report recognised that there had been a number of studies on the treatment of alleged terrorist detainees within high security settings, which had found that indefinite detention can have a negative impact on both the mental and physical health of detainees if the detention corresponded with a significantly restricted regime and loss of control over their lives. There could be high rates of mental distress in cases of small group confinement.^[99] It also acknowledged that the prison had to balance the risks of integrating the detainees with the rest of the prison with those of keeping the detainees separate from them. The first carried risks of hostility towards the detainees and possibly assaults on them, but also possible radicalisation of mainstream prisoners by detainees. The report said those were serious risks. On the other hand, there were risks involved in isolation and a restricted regime, not least of which was "the conditioning of staff".^[100] The report stated that under the regime prior to 9 December 2008, detainees did not press for greater integration than they then had with mainstream prisoners because they feared hostility or disapproval when off the unit and some felt vulnerable.^[101] The report also recognised the risks that "too complete a separation would result in an impoverished regime and overly restricted living conditions".^[102] There was, therefore, a need to balance the risks associated with separation against the risks associated with integration, which HMIP considered was "about right" at the time of the report.^[103] We accept and find that Mr Parker will have read and carefully noted the remarks of the report, particularly those we have identified in the previous paragraph.
74. Secondly, there is the CPT report of August 2006, based on its examination of the DU in November 2005, to which we have referred above and which we refer to again below on the section dealing with the Article 3 ECHR issue. We are prepared to accept that Mr Parker will have had the conclusions of that report in mind when making his decision in December 2008, although he did not specifically say so in his evidence.
75. Thirdly, there is the fact of the mental health problems of two detainees, Mr Bary and Mr Ahsan. We analyse their conditions before the regime change and after it in the context of their claims for breach of Article 3 in the next section of this judgment. Again, we are satisfied and find that Mr Parker would have been aware, in general terms, of their mental state,^[104] although we appreciate that he did not state in evidence that he brought their mental condition particularly to mind in making the decision.

Conclusions on Issue One.

76. Given those findings on the evidence, we have to ask: was the decision taken on 8 December 2008 either unreasonable, or irrational or disproportionate or for illegitimate aims? To do so, we think we must look at the facts as they existed then, not what has been borne out by subsequent events. We remind ourselves that: (1) the detainees were all unconvicted detainees, but who were legitimately classified as Category A prisoners. (2) All, apart from Mr Chambers, are accused of or have been convicted of grave terrorist crimes in foreign states. (3) Various English courts have held that the detainees should be deported to face such charges or prison sentences. (4) Mr Othman has been characterised as representing a continuing and significant risk to national security and someone having a major influence on other Muslims, particularly those susceptible to violent action against others. (5) Mr Bary and Mr Ahsan suffer from mental illness problems which we consider in more detail below. (6) At the time of the decision, Mr Parker thought that the regime would be for a matter of months rather than a long term arrangement. (7) Mr Parker had in mind, at least in general terms, the HMIP Report of January 2008 and the CPT report of August 2006.
77. We have not found the question of whether the decision was unreasonable an easy one, largely because of the unsatisfactory way in which the rationalisation for the decision has evolved since December 2008. Ultimately, however, we are persuaded that the decision was reasonable, for the following reasons. First, a Governor of a high security prison must have a wide discretion in the operational decisions he makes in the internal organisation of his prison and the arrangements made for Category A prisoners, even if unconvicted. This must be more so if the detainees are reasonably suspected of terrorist acts outside the UK and one or more is regarded as a threat to national security. Secondly, we accept that the key to the decision was the re-appearance in the prison of Mr Othman. He was and doubtless remains an iconic figure for jihadists. It is clear that he can (and could in December 2008) exercise a malign influence on other Muslims, including prisoners, and in particular, on impressionable young men, many of whom might be susceptible to his brand of extremism.
78. Thirdly, it follows that Mr Parker's concerns about possible radicalisation of young Muslim prisoners in the main part of Long Lartin were not only genuine, but also reasonable. We think that the recognition of this possibility in the HMIP report of January 2008 is particularly important. Therefore, we have no doubt that Mr Parker's concerns about the possible effect if Mr Othman had been given free access to the main prison were fully justified, even if he had no hard evidence or intelligence to base them on at the time he took his decision.
79. Fourthly, given the detailed conclusions of courts on the depths and width of Mr Othman's influence on terrorist groups and individuals, his willingness to use religious justification for acts of violence and terror and his views on the use of violence in the UK,^[105] it was reasonable that Mr Parker should conclude that there was a risk that Mr Othman might plan or incite others towards terrorist acts in the UK. It was reasonable that Mr Parker should conclude that this risk had to be minimised as much as was reasonably possible whilst maintaining Mr Othman's and other detainees' human rights.
80. Fifthly, Mr Parker appreciated that, given the particular problems raised by the presence of Mr Othman, he had a choice. Either Mr Othman had to be kept in a special regime on his own, or all those in the DU had to be subjected to the same regime. The first was not a realistic option. In particular, if the other detainees continued to use the main prison and Mr Othman was, in fact, determined to attempt to radicalise others in the main prison or to plan or incite terrorist attacks, he could try to persuade other detainees to assist him. He was known to be very influential and persuasive. He could give messages to be passed on, using mobile phones that were available in the main prison, as all acknowledged. Therefore, if Mr Othman was to be detained in the prison – and he had to be detained at some high security prison somewhere – and the risks identified had to be dealt with, then the only option was a new regime for all detainees. That was a reasonable operational decision to take.
81. Sixthly, we are satisfied that Mr Parker was conscious of the dangers that increased isolation created to the mental and physical health of the detainees. He may, in the event, have underestimated the effect, but we are satisfied that, at the time he made the decision, he thought that the new regime would only need to operate for a short time. It is clear that the new regime did have a deleterious effect on detainees: see the Annual Report of the Independent Monitoring Board which was produced in early 2009.^[106]
82. Seventhly, we accept that there was nothing particular in the history of Mr Othman's previous detention in the prison that specifically indicated that there would be attempts at "radicalisation" upon his return.^[107] There had been one incident in a prison gym in 2006, but that was isolated. Mr Othman may have been difficult in HMP Belmarsh immediately before his transfer to Long Lartin, but that was to be expected as he had just had his bail withdrawn. But, in our judgment the fact that there had not been a significant history of trouble in previous detentions could not outweigh the other, legitimate, risks that we find that Mr Parker was entitled to bear in mind in making his decision.
83. Therefore, we conclude that the decision of 8 December cannot be characterised as unreasonable. For the same reasons it cannot be called irrational.
84. The decision was, we find, proportional. Mr Parker was faced with three choices. First, he could continue the present regime; secondly, he could have confined Mr Othman to the DU on his own, whilst allowing the others to go into the main prison as before; thirdly, he could do as he did.^[108] Given our view that Mr Parker's assessment of the risks associated with Mr Othman was a reasonable one and our view that the "solitary" regime was unworkable, he was left with no other choice. The choice he took was, in all the circumstances, proportional.
85. We have concluded that one element in the reasons for the decision was a fear of critical comment in the press and other media about Mr Othman's position in the prison. That was not a legitimate reason for the decision. But it was not the driving force behind it. The key reasons were those we have given above. Those were legitimate reasons.
86. We note that neither the detainees nor their legal advisors were given reasons for the decision at the time. Although there can be debate about whether there could and should have been an explanation on 8 December 2008, the lack of an explanation cannot, in the circumstances of this case, make the decision itself either unreasonable, irrational or disproportionate. It will be clear from what we have found and held that the letter of 25 December 2008 did not set out clearly and correctly the reasons for the decision. That was unfortunate. The full and correct reasons have been slow to emerge and they should not have been. But we are not prepared to conclude that the failure to explain matters fully and properly in December 2008 is a good reason for finding now that the decision itself either unreasonable or irrational or disproportionate or made for an illegitimate reason.
87. The claim to quash the original decision of Mr Parker of 8 December 2008 based on domestic public law principles therefore fails.
88. On the question of whether there has been a failure or refusal to review the new regime, we find as follows: first, there have been monthly review meetings with Mr Holland. Secondly, although there have been changes in details of the regime, there have been no fundamental alterations. Thirdly, we find that there was no a priori decision of Mr Parker that he would never entertain serious changes in the regime so long as Mr Othman was in the DU. There is no evidence for such a decision and we reject the submission that the answers of Mr Holland at the monthly meetings leads inevitably to that implication. Fourthly, we accept that Mr Othman has not caused trouble since the regime has been changed.
89. We accept that Mr Parker and HMPS generally must be under a duty to keep the decision to change the regime and also the details of the new regime under review. We are satisfied that has been done. We also conclude, on the evidence we have, (which only considered the position from both sides up to October 2009), that the fact that the fundamental nature of the new regime remains unchanged cannot be attacked on the ground that this state of affairs is unreasonable or irrational or that it is maintained for an illegitimate purpose. The legitimate concerns of Mr Parker remain the same. They have been reinforced by the letter of 30 June 2009 to Mr Parker from the Assistant Chief Constable (Specialist Operations) of the West Mercia Constabulary. This letter reached two conclusions, on the basis of a briefing by the Head of Special Branch of West Mercia. The conclusions are: (a) that the individuals in the DU are significant and influential and likely to seek to radicalise others should the opportunity arise; and (b) placing such individuals within the mainstream of the prison would give them access to mobile phones and so opportunities to communicate with the outside world. The letter concluded that allowing detainees access to the main prison would increase the risk to national security. Those conclusions cannot be dismissed as irrational or unreasonable. Mr Parker was entitled to take them into account in deciding whether or not to continue with the changed regime.

Issue Two: Has Governor Parker's decision and the consequent regime breached the Article 3 rights of Mr Bary and Mr Ahsan?

90. Whereas the claim based on domestic public law principles looks primarily at the decision itself, this claim looks at the effect that the decision has had on two of the detainees, Mr Bary and Mr Ahsan, who suffer from mental health problems. It is advanced upon five propositions. (1) Each of the two men had a pre-existing mental condition. (2) Following Mr Parker's decision, there was a serious deterioration in their mental state, which has caused and continues to cause them serious psychological damage. (3) This deterioration was caused by the change in regime. (4) There was no legitimate reason to change the regime, or if there was, the regime change was disproportionate. (5) In the circumstances, the imposition and the continuance of the regime has had a debasing and humiliating effect upon them and thus amounts to a breach of their Article 3 rights.
91. In Appendix A to this judgment we have identified what we believe are the important elements of the personal histories of each of the claimants, including the grave charges made against them. It will be clear from what we have said above that all, but particularly Mr Othman, were and are believed to represent serious security risks both within the prison and outside it.
92. Mr Owen has not concentrated so much on the physical conditions in which Mr Bary and Mr Ahsan are now held, although he submits it is very restrictive. He concentrates instead on the mental effect on these claimants of the separation and isolation that have resulted from the decision.
93. Mr Owen's starting point is that it has long been recognised that there are particular risks to prisoners' mental health if they are kept confined in small isolated units. He directed us to the report of HMIP, to which we have referred already^[109] and in particular paragraphs 1.4 and 1.6. Paragraphs 1.4 and 1.6 state:

"1.4 A number of studies have examined the treatment of alleged terrorist detainees within high security settings. A primary finding is that indefinite detention can have a negative impact on both the mental and physical health of detainees if it corresponds with a significantly restricted regime and loss of control over their lives. High rates of mental distress have been found in studies examining the impact of small group confinement and, independent of a previous history of mistreatment which carried its own risks, detention in high security settings was shown to constitute a separate challenge to mental health.

1.6 The holding of detainees in a high security prison requires a careful balancing of risks and needs. Integrating them with mainstream high security prisoners carries a risk of hostility towards them, and even assault, or the possible radicalisation of mainstream prisoners by detainees; both serious risks that the Prison Service must manage. The fact that they were held separately acknowledges their difference from mainstream prisoners, yet necessarily involves isolation and a restricted regime. It also risks the conditioning of staff. It does, however, allow for some modification of prison procedures that are inappropriate or unnecessary for detainees."

94. The Annual Report of 2008/9 of the Independent Monitoring Board into conditions at the prison drew attention to what it called the "unsatisfactory regime" in the DU. It states that "[t]here is too little for these men to do, thrown back on their own company, they have become noticeably more introspective and listless. A better regime is a matter of urgency".^[110] This matter was specifically drawn to the attention of the Minister. The minister responded by letter dated 6 June 2009. He reported that there had been a number of changes to the facilities in the unit, viz. the installation of computers, with education software, with support from an IT teacher, the reinstatement of visits to the library, the provision of new equipment in the gym, with a PE instructor, the visits by an imam to Friday prayers in the unit and the provision of a herb garden into the open air yard. He considered that with these improvements, the regime could no longer be called "inadequate".
95. The CPT report, to which we have already referred, had examined the conditions in the DU in November 2005. The CPT reported:^[111]

"The CPT would encourage the prison management in both prisons to continue to be flexible in providing a diverse regime to the detainees, who are neither remand nor sentenced prisoners, although they are classified as high security risk (Category A). While no "sentence planning" can be carried out, every effort should be made to enable the detainees to take part on a voluntary basis in education, sport and work activities, including in the company of other prisoners as was being proposed at Long Lartin prison. This will help to alleviate the sense of hopelessness that many of the detainees experience as well as assist them to cope with life on the outside, when they are released."

96. Other reports into the different conditions prevailing in other prisons and "Special Secure Units" ("SSUs") were contained in the bundles and referred to in the witness statement of Ms Peirce.^[112] They are reviewed in the joint report of Dr Robertson and Dr Deeley dated 7 July 2009. That report states that the importance of occupation and purposeful activity have long been recognised when small numbers of prisoners are kept closely confined and without proper opportunities to mix with other prisoners in work, education, sport, recreation and worship. They suggest that this lack of activity can pose "a serious threat to the detainees' sense of personal and social identity, self-esteem, organisational capacity and motivation…which is likely to lead to a deterioration in psychological health and social functioning of people exposed to such a regime".^[113] They also say that this risk may be increased significantly in respect of those detainees who have a previous history of exposure to torture or have suffered mental illnesses in the past; such people may be rendered more vulnerable to the stresses of close confinement. They suggest that the regime in place since 9 December 2008 'poses fundamental threats to a number of aspects of human dignity and identity … associated with a great deal of psychological and frank psychiatric morbidity … the longer it continues the more severe and pervasive the morbidity is likely to be'.^[114]
97. Dr Cummings drew attention to the fact generally in the prison estate, both in the UK and around the world, between 5 and 10% of remand prisoners have mental health disorders. Increased rates of morbidity have been identified in extradition centres.^[115] He has visited and examined the DU and is of the opinion that there are no particular issues there which make that particular unit more stressful or likely to cause any greater mental health issues than any other prison within the high security estate.
98. Dr. Cummings stated that he recognised that those with pre-existing mental heath issues are vulnerable but he pointed out other factors which may also present particular problems. The first is uncertainty. He said that is one of the principle reasons why remand prisoners, who do not know their future, have a higher incidence of mental illness than convicted prisoners sentenced to a determinate sentence, who do know their future. Those awaiting extradition face the particular uncertainties of not knowing whether they will be sent abroad for trial as well as the prospect of being held in close confinement in inhospitable and even harsh conditions. Allied to this is the particular strain caused by the separation from the detainee's family. As Dr. Cumming puts it: '… having no time frame or clear exit strategy, this can erode the individual's responsibility and ability to provide reassurance or a sense of future together'.^[116]
99. In his report of 14 January 2010, Dr Grounds suggested that long-term confinement of a group of prisoners in a single relatively small secure environment where they could not move to different locations or have access to the same occupational and educational facilities as other prisoners was known to lead to deterioration in prisoners' mental health. This was characterised, he said, by persisting distress, anxiety and depression. He also suggested that the physical conditions at the DU, which at first sight looked generally satisfactory with a reasonable decor and a range of rooms and facilities, did not in fact appear to prevent or mitigate the development over time of significant psychological distress and a deterioration in the mental health of the detainees. His view was that it was likely that this distress and deterioration was related to long term confinement with restrictions on meaningful occupational activity socialisation or progression through different regimes.^[117]
100. With that summary of the general evidence, we must now examine the position in relation to Mr Bary and Mr Ahsan.
101. Adel Abdel Bary: Mr Bary was examined by Dr Robertson. His first report of 3 March 2009 summarised Mr Bary's history of mental health problems. He had been a victim of torture in Egypt. He told Dr Robertson how he had been suspended and electrocuted. He had intermittent and intrusive memories of the torture and he always felt under pressure by authority. It was as a result of the torture that he was granted refugee status in this country. Even as far back as 2002, Mr Bary complained that he was feeling low, even suicidal, at the prospect of his extradition to the United States, where he faced trial upon grave charges with the risks of detention in the very harsh regimes of Federal maximum security prisons. He keenly felt the separation from his family. He complained that his children have been brought up without him. He was even then hearing voices in his head.
102. Dr Cummings saw Mr Bary at about the same time. His diagnosis was that Mr Bary was suffering from a "moderate depressive illness". Dr Cummings concluded that Mr Bary's continued incarceration was an important factor in the aetiology of the illness.^[118]
103. Mr Bary briefly went on hunger strike in 2003, when he was referred to Broadmoor. There he again threatened suicide, his appetite was diminished, his sleep was disturbed and he had difficulty in concentrating, but his speech was coherent and there was no evidence of thought disorder. He was assessed by Dr Pane, a consultant forensic psychiatrist on the staff at Broadmoor, as having 'a moderate depressive disorder which was neither of a nature nor degree to warrant transfer to hospital'.
104. In 2004 Mr Bary was re-classified as a Category A prisoner, with the consequential further restrictions that were placed upon him. He spent more time locked up, there was reduced association with other prisoners, fewer opportunities for education, exercise and reduced contact with his family. He was seen by Dr Ratnam who considered that he was then exhibiting a sense of hopelessness and helplessness. He diagnosed a 'severe' depressive disorder and that his current conditions 'were serving to perpetuate his mood disorder'.
105. Dr Robertson who has examined the claimant's medical history in some detail, was of the opinion that before the new regime: 'Mr Bary was suffering from a depressive disorder of probable moderate intensity'. ^[119]
106. We next consider the claimant's own reaction to the changed regime. He has already been in custody for 11 years awaiting extradition. Previously, he had enjoyed being in the workshop, where he made furniture and small gifts for his children. He attended the education classes. He went to the communal Friday prayers. He felt that the social contact and inter-action with other prisoners, and indeed civilian staff members, provided a view of life outside the DU.
107. He now complains of the separation from other prisoners and the effects that it has upon him. He feels isolated. He misses the Friday prayers. He has no conversation with anyone outside their small group. He says that it feels as if he has lost connection with the world outside; there is – as he puts it – 'no relief from the pain'. He says that even a dog is taken out for daily walks but he is being kept like an animal in a cage. He has no view of anything outside the unit. The days of the week and even the passage of the seasons mean nothing. He says that he has lost all interest; he sometimes does not bother to cook or to shower. He has become neglectful of his personal appearance and hygiene. He says that he looks unkempt and even wild. He has become impatient and intolerant with the other detainees, with staff and even with his visitors. His sleep is disturbed, he has bad dreams, he shouts and screams. He says that sometimes at night he bangs his head against the wall; he showed Dr Robertson the resultant bruises on his forehead.
108. Throughout the time of his detention at Long Lartin, Mr Bary's mental health has been continuously monitored. Community psychiatric nurses visit the unit regularly. Their findings are logged in detail in the thorough and even meticulous inmate medical records, which we have seen. The records detail Mr Bary's generally poor state of mind. His condition is there variously described as being low, negative and morose. He often said to the psychiatric nurses that he would have committed suicide long ago if that was not forbidden by his religion.
109. Mr Bary was also visited by Dr Kenney-Herbert, a consultant forensic psychiatrist. Mr Owen for the claimant puts some stress upon an email sent by Dr Kenney-Herbert on 10 March 2009,^[120] in which he set out Mr Bary's complaints about the restrictions imposed under the new regime. Dr Kenney- Herbert wrote: 'I do think the apparent changes are significantly affecting his sense of well being and wanted to draw this to your attention'.
110. In Dr Robertson's report following his examination of Mr Bary on 3 March 2009, he says he found Mr Bary to be irritable, tearful and unable to concentrate. His conclusions are as follows: 'Mr Bary suffers from a recurrent depressive disorder, the current episode of which is most probably moderate to severe with biological symptoms (i.e. sleep and appetite disturbance). ... In my opinion, it is difficult to quantify objectively the change to Mr Bary's mental state since the introduction of the new regime in the Detainee Unit… however, in my opinion, on the balance of probabilities, Mr Bary's mental state deteriorated subsequent to the regime change.' He thought that the reduction of activity at work, education and worship, combined to increase stress level, thereby exposing him to 'significantly increased risk of mental disorder'.
111. Dr Robertson reported again following a further visit on 8 January 2010. Again he reviewed the detailed inmate medical records which recorded Mr Bary's continuing depressive symptoms, in particular poor sleep and concentration. Dr Robertson reported that Mr Bary's feeling of separation and isolation had intensified. Dr Robertson also reported that Mr Bary was continuing to engage in self harm by banging his head on the wall and again Dr. Robertson noticed bruising on his forehead. Dr Robertson reported that Mr Bary had recurrent nightmares and often shouted out in rage and frustration. He was still on anti-depressant medication. Dr. Robertson concluded that he continued to suffer from 'a moderate to severe depressive disorder'.^[121]
112. Dr. Robertson attributed such deterioration as there was to the change in the regime. However it seems clear to us that there were several other 'stressors' which were acting upon Mr Bary. We think that three matters in particular are important. First, the uncertainties of his indefinite detention; he told Dr Robertson that he had now been detained without knowing his fate for ten years. Mr Bary said that other prisoners know their fate and with each day that passes, they are a day closer to release. But for him 'there is no future … the best future is the grave'. Another typical observation, again made to Dr Robertson was: 'I have no hope ... my life has gone'. ^[122]
113. Secondly, he was throughout this period facing extradition to the United States. We think that this factor must carry particular weight because Mr Bary's appeal to the Divisional Court against his extradition was heard in mid February 2009 and decided against him on 20 July. Although he still has the prospect of an appeal to the ECtHR, the risks of his eventual extradition must appear to him to be greater now than they were. If he were to be extradited, he is well aware of the deprivations of the harsh and unsympathetic regime which he faces in the Federal 'supermax' prison in the USA. Thirdly, in early 2008, his elderly mother died in Cairo and he was unable to go the funeral. Understandably, he was very emotional as he described this event to Dr Robertson.
114. Dr. Cumming also reviewed in detail Dr Bary's history as shown in the inmate medical records. He concluded that there had been some deterioration in his mental state, as demonstrated by his depressed mood, a lack of enjoyment, altered sleep patterns and by his lowered energy levels. But he thought it was too simplistic to attribute all of his deterioration to the changes in regime. Dr Cumming thought that other factors were also at work, in particular the uncertainties presented by the risk of extradition to the US.
115. Talha Ahsan: Mr Ahsan is now 30 years old. He is anxious that the nature and extent of his mental illnesses are not canvassed in public. He feels shame that he has any mental health problems, which he considers to be personal weaknesses and he fears that the press and others will use these facts to discredit him. He made these points repeatedly to Dr Deeley when he was examining Mr Ahsan. We appreciate this view, but as Mr Ahsan's psychiatric state lies at the heart of the complaint of breach of Article 3, unfortunately, it is necessary to summarise the doctors' findings for the purposes of this judgment.
116. Dr. Davison spoke of Mr Ahsan's history of persistent low mood, low self esteem, poor energy, a loss of concentration, poor appetite, disturbed sleep patterns and a sense of hopelessness, accompanied by a history of self harm and even mutilation. She considered that between 1999 and 2005, he had experienced a major depressive disorder. Since he also reported hypomanic symptoms, she thought that he might have a bipolar affective disorder. She thought that the symptoms were in remission but she considered that because he was vulnerable, long term detention might overwhelm his coping mechanisms, leading to profound depression, and a seriously detrimental affect upon his mental health as a result of which he might become suicidal.
117. Dr Davison said of Mr Ahsan, before the change in regime, that he was prevented from becoming severely depressed in prison by the fact that he kept himself occupied. He used his very structured programme to distract himself from very negative, hopeless thoughts about his own worthlessness and the futility of his continuing to live. "The regular activities that he does provide him with a source of self esteem, as well as intellectual stimulation and distraction."^[123] Dr Davison continued:

"If he were subject to the extreme social isolation, reduced environmental stimulus and poor educational or exercise opportunities that I understand apply in administrative detention, then he would be stripped of all his coping mechanisms and would become at very high risk of severe depression."^[124]

118. Dr. Deeley reported on 8 June 2009. He identified very clear indications that the claimant suffered from a form of Asperger's syndrome (rather than a bipolar condition as diagnosed by Dr. Davison). His Asperger's had resulted in some difficulties in gathering a detailed personal history, a position made worse by the claimant's reluctance to speak of such matters. Mr Ahsan said that he had feelings of boredom, frustration and irritability. He complained that increased isolation led to a disturbance of his sleep patterns, increased irritability and to deterioration in his social contact with other detainees, which had resulted in a loss of purpose to his life and a further weakening in his already poor social skills. He particularly felt the withdrawal from the communal act of Friday prayers. He described how he felt 'numb', and 'like a stone'. Mr Ahsan said that he now weeps and shouts a good deal. He has persistent thoughts of self harm and suicide, but he refrains from carrying these out only because of his religious beliefs and his feelings of pride and his dignity.
119. Dr. Deeley gave this diagnosis of Mr Ahsan's current position as follows: he suffers from an Autistic Spectrum Disorder with a recurrent depressive disorder, which is now 'severe, without psychotic symptoms'. He gave this opinion:

"It is likely that Mr Ahsan's mental state will further deteriorate under the stressful conditions of the new regime, given the cumulative impact of stressors associated with the new regime, and absence of ameliorating or supportive factors which had been available prior to the imposition of the new regime (e.g. the provision of a structured timetable with activities that Mr Ahsan found meaningful, such as opportunities for study and developing his capacity to interact with others). It should be noted that by virtue of his Asperger syndrome and depressive disorder, Mr Ahsan is an extremely vulnerable individual who from a psychiatric perspective would be more appropriately placed in a specialist service for adults with autistic disorders and co-morbid mental health problems, with the level of security dictated by his risk assessment."^[125]

120. Dr. Deeley saw Mr Ahsan again on 8 January 2010 and provided a further report. Mr Ahsan repeated what he had previously said about the deleterious effects of the regime: he described how conversation with the same people, day after day, became boring indeed so inane that he now sought to avoid conversation altogether. Mr Ahsan now reported some symptoms of depression, including marked irritability, which he thought had worsened; however, his mood had improved somewhat, he seemed now to be 'largely indifferent and his energy levels are normal'. His previous interest in creative writing had dried up but he had preserved his interest in reading and in his Quranic studies.
121. On the basis of this self-report, therefore, Dr. Deeley considered that Mr Ahsan's current depressive illness should be considered to be 'mild'. It will be recalled that previously, it had been reported as severe. However, Dr Deeley reported that Mr Ahsan's obsessions (to which sufferers of Asperger's syndrome are prone) had become worse. Mr Ahsan now complained of repetitive intrusive thoughts 'about regrets, embarrassments and socially unacceptable actions' which caused him to shout out. This, Dr. Deeley considered to be a type of 'obsessive compulsive disorder'. Therefore he considered that since his earlier examination in March 2009, the claimant's depressive symptoms appeared to have improved, but his symptoms of obsessive compulsive disorder and his anxiety have worsened. Dr. Deeley considered that he would benefit from the opportunity to interact with a wider range of people and thereby to develop his social skills and more supportive relationships.
122. When considering Mr Ahsan's increased anxiety, it is important to remember that he is facing extradition to the USA on various grave charges. Mr Ahsan told Dr Deeley that the fear of extradition was always at the back of his mind. Indeed at their meeting, in January 2010, Mr Ahsan said that the prospect of spending the rest of his life in a Federal 'supermax' prison in the USA, without hope of parole, occupied most of his time. Furthermore, as we have already said, he remains acutely anxious that his mental health issues may be used to discredit him.

Conclusions on the Article 3 claims of Mr Bary and Mr Ahsan

123. We recognise that any deprivation of liberty will involve some suffering, distress and hardship. The greater the loss of liberty, obviously the more intense that suffering, distress and hardship will be in all but exceptional cases. But we must start from the proposition that detention in a high-security prison, even in conditions of separation from other prisoners, whether on remand awaiting trial or deportation or extradition, will not, by itself, constitute a breach of Article 3.
124. First we consider factors that apply to both Mr Bary and Mr Ahsan. We have described the physical conditions in which these detainees have been held. They are confined, but far less severe than those described in Scott Baker LJ's judgment referred to above.^[126] We are quite satisfied that the new regime was not instigated to punish or humiliate or debase any of the detainees. We find that the mental state of both has been carefully monitored throughout their detention at the prison.
125. Next, we examine the particular personal circumstances of Mr Bary and Mr Ahsan and set those against the regime as it exists and the reason for its existence.
126. In the case of Mr Bary these are as follows: first, we conclude that Mr Bary was vulnerable on account of his pre-existing mental health problems. As a result, there was a particular duty to monitor the effect of any regime and especially any change of regime, upon him. Secondly, we are satisfied that there has been a change in his mental condition as a result of the change in regime following Mr Parker's decision. Mr Bary's mental condition has changed from a "moderate" to a "moderate to severe" depressive disorder. Thirdly, this change has been brought about partly by the change of regime, but also by other factors. The increased likelihood of Mr Bary's extradition to the USA, following the failure of all his appeals, with the possibility of being incarcerated in the harsh regime of a "supermax" prison in the USA, is also an important factor, as Dr Cumming indicated.
127. Fourthly, we conclude that Mr Bary's mental state has been closely monitored throughout his detention. The tone of the email from Dr Kenney-Herbert on 10 March 2009 (to which we have referred above) is not, on our reading, an emphatic or urgent warning that serious psychiatric or psychological damage to Mr Bary was imminent, or even likely in the long term. At its highest, the email was a preliminary indication that the new regime might have some long term adverse effects on Mr Bary's well-being.
128. In the case of Mr Ahsan, first, we are satisfied that he suffered, at all material times, from Asperger's syndrome. We are not satisfied that he suffered from any other particular mental illness either just before or after the change in regime. Secondly, we accept that he was vulnerable on account of his Asperger's syndrome and the depression from which he had suffered in the past. Thirdly, however, we are not satisfied that there has been any deterioration to his mental state; even if there has been, at the most it is a slight, not a serious deterioration. We have no doubt that there were many other factors acting upon his mental state other than the changes in the prison conditions and regime.
129. In these circumstances, our conclusion, in the case of both Mr Bary and Mr Ahsan is that they have failed to prove to the necessary high standard that the imposition of the change in regime has resulted in them being subjected to inhuman or degrading treatment or punishment in breach of Article 3. Those claimants therefore fail on this head of claim.

Issue Three: : Has Governor Parker's decision and the consequent regime breached the Article 8 rights of all the detainees?

130. It must follow from our analysis of the law on Article 8 rights that an interference with rights to develop relationships with other human beings and an interference with the right to mental stability in the broadest sense can amount to breaches of Article 8(1), if the interference reaches a sufficient level of seriousness and if the claimant enjoys a reasonable expectation of those senses of privacy. Although the detainees are all Category A prisoners and reasonably suspected of serious crimes outside the United Kingdom, they are also unconvicted in United Kingdom courts. We are satisfied, on the facts of this case, that, in the circumstances in which the detainees had become detained, they were still entitled to retain reasonable expectations of privacy with regard to the right to develop relationships and the right to stability of mental health.
131. We are prepared to accept that, in the case of all the detainees, the imposition of the new regime on them by Mr Parker, acting as Governor of the prison, did interfere with their rights to develop relationships and that it did interfere with their right to mental stability in the broadest sense. We are also satisfied that the effect of the imposition of the new regime and the consequent restrictions imposed on the detainees was of a sufficient level of seriousness so as to bring into play (or "engage") the operation of Article 8.
132. That means that Article 8(2) must be considered. On the assumption that he has not succeeded on the first head of claim, Mr Owen does not argue that the interference with the rights of the detainees by the imposition of the new regime is not "in accordance with law" for some other reason. His primary argument is that the imposition of the new regime was not necessary in principle for the prevention of disorder and crime or for the protection of the rights and freedoms of others. His secondary argument is that if it was necessary in principle, the restrictions actually imposed were not proportionate to those two legitimate aims.
133. It will be clear from what we have already decided in relation to Issue One that the principal reason that Mr Parker decided to impose the new regime was because of concerns about the possibility that (a) Mr Othman might radicalise Muslim young men in the main prison; and (b) Mr Othman might plan and/or incite terrorist action in the UK if he were to be allowed access to the main prison as permitted under the detainees' regime prior to 9 December 2008.
134. Translated into Article 8(2) terms, the aim of Mr Parker's decision was to "prevent crime and disorder" and the "protection of the rights and freedoms of others". Those are obviously legitimate aims and Mr Owen did not argue otherwise.
135. We must now consider the four elements which we identified (in paragraph 43 above) that a court must have regard to when deciding whether an interference with Article 8(1) rights is necessary in a democratic society and so proportionate. First (as we have already identified), the rights in issue are the rights to associate with other human beings and the right to mental stability. Secondly, it is obvious that those rights are important rights for individuals generally. In a sense they are even more important for individuals who are subject to detention because their ability to associate with others and to maintain their mental equilibrium must be constrained by the very fact of their being detained.
136. Thirdly, we must consider the nature of the interference with the rights and the effect that the interference has had on the detainees themselves. We have already set out the nature of the interference. Broadly, it has three aspects. The first is that there is much less freedom of physical movement because the detainees are much more confined to the DU itself. That is a small space and being in there for most of the time will mean the detainees have a constant feeling of confinement and isolation. The second is that there is much less scope for association in the DU. It is confined effectively to fellow detainees, those who guard them (chosen from the group of 16 guards), the medical staff who visit them and family and other visitors. The third aspect is, in a sense, a consequence of the first two; it is the physical and mental effect on the detainees. We need to examine the evidence rather more on that point.
137. We look first at the DU facilities. The current position on facilities is better than it was when the proceedings were instituted in June 2009. The exercise yard is now open. The equipment in the DU gym has been improved. Visits to the library in the main prison are now permitted, although still limited. There is a printer, (which seems to work intermittently), but no on-line computers linking into the main Education network. There are more television channels available, including an expanded ability to receive Al-Jazeera. Detainees have to undergo two strip and cell searches every month, as opposed to monthly searches for other Category A prisoners. Despite improvements since the new regime was instigated, the fact remains that it remains very restrictive.
138. We have next to consider the effect of the change in regime on the individual detainees. We have no report which compares the physical health of the detainees before and after the change in regime. The detainees all signed a joint statement dated 6 August 2009 which dealt generally with their health and attitude in the light of the regime then in force. The following points are made: first, the detainees have noticed a marked deterioration in the general mental health of all of them. They are more reserved and have less to say to family visitors or phone callers. This has made them more introspective and withdrawn.^[127] Secondly, there is a feeling of being deprived of physical, mental and visual stimulation because of the greater confinement.^[128] Thirdly, some detainees have suffered a deterioration in their eyesight. This is attributed to the lack of distant objects on which to focus.^[129] Fourthly, all detainees have said that the change in regime has caused increased stress. Individual detainees (Mr Al Fawwaz and Mr Chambers) have stated they have suffered a deterioration in their physical health as a result of this.
139. The latest psychiatric report on the possible effect of the change on the regime on detainees was that produced by Dr Cummings in January 2010. Although produced on behalf of the Respondent, we regard the report as being up to date, independent, fair and balanced, as it should be. Dr Cummings accepts that occupational activity and the ability to build a structure around a day are important issues. So also is the question of small group isolation. He is less convinced that physical exercise is important; he points out that many ordinary prisoners take little or no exercise with no particular effects.^[130]
140. Dr Cummings comments on each of the detainees. His conclusions, very briefly, are as follows: for Mr Bary the change in regime had affected his depressive and anxiety symptoms and had produced emotional changes such as anger, protest and frustration.^[131] "U" had noted a change in other detainees and he himself was frustrated at the lack of effective education and computer facility. Dr Cummings did not see mental health issues arising from U's statement.^[132] As already noted in the previous section, Dr Cummings concluded that Mr Ahsan's Asperger's Syndrome was not to be attributed to the prison or the change in regime.^[133] Dr Cummings concluded that he could not detect from Mr Khalid Al Fawwaz's statement any mental health issues which are clinically significant.^[134] Dr Cummings noted that there appeared to have been an improvement in the mental state of Mr Chambers in recent months and other complaints (stomach ache, talking to himself) were present before the change in regime.^[135] Dr Cummings reports that Mr Othman notes that since the change in regime he has had deteriorating eyesight, more strained relationships and that others were more anxious and depressed. Dr Cummings concludes that there had not been any significant clinical deterioration or alteration since the change in regime.^[136]
141. Dr Cummings' concluding paragraph is careful and measured:

"In summary, within any prison setting The Prison Service has to strike a careful balance between security and care; this is often a very difficult challenge and one I feel that The Prison Service addresses in good faith. The detainee unit is even more of a challenge and they have tried to improve matters as best they can. The change in regime is another aspect that the detainees have struggled to adapt to. It sits on top of fears around an uncertain future, limitations in structure and activity, separation from, loved ones, boredom and lack of trust to name a few. Though these might be present in other prisons and other units they seem to be greater in this particular unit. A number of the detainees have pre-existing mental health difficulties and not surprisingly as they are perhaps more vulnerable the effects are more obvious. As time passes there is a cumulative effect and though psychiatric services can provide amelioration, addressing the cause whenever possibly is usually the preferable strategy."

142. Lastly, we recall the principal object of the interference, which is to prevent the risks of (a) Mr Othman radicalising young Muslim men in the main prison if he had free access there; and (b) Mr Othman being able to plan and/or incite terrorist acts outside the prison. From all that we have already held it will be clear that we regard those objects as being legitimate.
143. We must also note that Mr Parker gave no reasons for the change in regime to the detainees or their legal representatives at the time and the reasons given have changed since the letter of 25 December 2008. We have to take this into account when considering whether the interference with the Article 8(1) rights is proportionate.
144. Once again, we have found the question of whether the interference with the detainees Article 8(1) rights was proportionate to be a difficult one. However, we have concluded that it was. The rights of association and to mental stability are important to the claimants. The interference with those rights is considerable because of their confinement to the DU for much of their time. But, in our view, the key factor is the object of the interference. The objects are of national and, perhaps, international importance. To put Mr Othman in a solitary confinement to achieve those objects would be likely, in our view, to be disproportionate. But to put all the detainees under the regime that has evolved since Mr Parker's decision of 8 December 2008 is, is justifiable within the terms of Article 8(2) of the ECHR. It is the only way of satisfactorily achieving the legitimate objects and the least objectionable way of doing so.
145. Once again we note that Mr Parker and HMPS must be under a duty to keep under review the objects of the new regime and whether it is necessary to achieve legitimate aims within Article 8(2). On the evidence we have seen we are satisfied that this has been done in the period with which we have been concerned.

Conclusions, disposal and a footnote.

146. It follows that we must reject each of the three claims put forward on behalf of the detainees. The claims for a declaration that the decision of Mr Parker be declared invalid and that it be quashed are therefore dismissed.
147. We wish to thank counsel for their most helpful written and oral submissions and for the efficient way that the oral hearing was conducted by them. However, we also wish to draw attention to the fact that the organisation of the bundles in this case made our work in preparing for the hearing and, more particularly, in writing this judgment more difficult than it might have been. It would have been far better to have had one bundle which contained all the witness statements; one which contained the experts' reports; one which contained contemporary correspondence and one which contained other material relied on (such as the Inspection report of HMIP and the CPT report). A "core bundle" would also have been most useful. As it was we were compelled to dive from one bundle to the next to find relevant material on a single topic. The problem of bundles in complex Divisional Court cases was referred to in R(Judy Brown) v Sec of State for Work and Pensions and others [2008] EWHC 1357 (Admin), at paragraph 214. We repeat the comments made there that, in future, in large cases such as this one, it may be helpful for there to be a short directions hearing to discuss the organisation of bundles once it is known what material it is intended to lay before the court. That said, we repeat our thanks to counsel and their teams for all their assistance in this case.
APPENDIX A THE CLAIMANTS' PERSONAL HISTORY
148. There are now six claimants.^[137] Their individual procedural histories are set out below.

A. OMAR OTHMAN

149. Mr Othman has been detained (without trial) since October 2002, with the exception of two brief periods of bail in 2005 and 2008, totalling 10 months.
150. Mr Othman was born in 1960 near Bethlehem, at that time in Jordan. He arrived in the United Kingdom on 16 September 1993 on a forged UAE passport. He claimed asylum on arrival for himself, his wife and his then three children. The basis of his claim was that he feared that he would be tortured if returned to Jordan, as he had been tortured in the past by the Jordanian intelligence services. On 30 June 1994, Mr Othman was recognised as a refugee in the UK. He was granted leave to remain until 30 June 1998. On 8 May 1998, he applied for indefinite leave to remain ("ILR"). That application remains undetermined.
151. On 17 January 2001, the Secretary of State for the Home Department ("SSHD") certified that he was a risk to national security and issued a notice of intention to deport. The notice was not served at that time, because Mr Othman went to ground. The Anti-Terrorism, Crime and Security Act 2001 ("ATCSA 2001") came into force in December 2001. But in October 2002 he was detained under the ATCSA 2001 and held at HMP Belmarsh from November 2002 to March 2005. After one week as a 'high risk' Category A prisoner, he was re-classified as a 'standard risk' Category A prisoner. He was held on the ordinary wings in Belmarsh.
152. He appealed against the SSHD's certification that his presence in the UK was reasonably believed to be a risk to national security and that he was reasonably suspected of being an Al Qaeda linked international terrorist. His appeal was dismissed by a panel of the Special Immigration Appeals Commission ("SIAC") chaired by Collins J in March 2004. He was granted permission to appeal that finding but he did not pursue the appeal.
153. Following the decision of the House of Lords in A and Others v SSHD,^[138] in December 2004, the ATCSA 2001 was not renewed. Mr Othman was released by SIAC on bail on 11 March 2005 on terms very similar to those imposed on him by a Control Order made the following day under the Prevention of Terrorism Act 2005 ("PTA 2005"). He appealed against that Order.
154. Before the appeal was heard, on 11 August 2005, Mr Othman was served with the Notice of Intention to Deport, on the ground that he was a threat to national security; whereupon the Control Order ceased to have effect. He was then detained pending his deportation. He arrived at HMP Long Lartin in January 2006. His appeal against the Notice of Intention to Deport was dismissed by SIAC in February 2007. It found that he was a threat to the national security of the United Kingdom. He did not appeal against that finding but he did appeal on the basis that his deportation to Jordan would infringe his rights under the ECHR. In April 2008 the Court of Appeal found that his deportation would involve a breach of his right to a fair trial under Article 6.
155. Mr Othman was released on bail by SIAC on 17 June 2008. At that time the Court of Appeal had refused the Home Secretary permission to appeal its decision and as the House of Lords had not yet given permission. However, SIAC accepted that he "represented a continuing and significant risk to national security and that there was a current and significant risk of absconding".^[139] On 8 November 2008, however, he was detained at his home and taken to HMP Belmarsh. The SSHD considered that, if he was re-admitted to bail, he would be "likely to break any condition on which he was released".^[140] SIAC found that he was likely to abscond and on 2 December 2008, SIAC revoked Mr Othman's bail and ordered that he be detained again. He was transferred from HMP Belmarsh to Long Lartin in early December 2008.
156. In February 2009 the House of Lords allowed the Home Secretary's appeal and dismissed Mr Othman's cross appeals against the decision of the Court of Appeal.^[141] He has subsequently applied to the ECtHR in relation to the risks to which he claims he will be exposed if deported to Jordan.^[142] That application awaits determination.
157. SIAC stated in its decision in February 2007^[143] that:

"79. [Mr Othman] has given advice to many terrorist groups and individuals, whether formally a spiritual adviser to them or not. His reach and the depth of his influence in that respect is formidable, even incalculable. It is not a coincidence that his views were sought by them. He provides a religious justification for the acts of violence and terror which they wish to perpetrate; his views legitimised violent attacks on civilians, terrorist group attacks more generally, and suicide bombings. He may have spoken against some grosser excesses, but that does not go very far. Even if his views are sometimes couched in careful language, their import is clear to those who take notice of what he says and know how to interpret it. His views, scholarly in any conventional sense or not, are important to extremists seeking to justify violence.

80. He may see his views as simply laying down the boundaries for self-defence and legitimate resistance to oppressive regimes or ill-deeds done to Muslims, but his application of those concepts encompasses legitimising aggressive violence against civilians, western, Middle East and North African states, and other religions or ethnic groups: those who are seen as a threat to Islam or rather to his view of Islam. His request that the four hostages in Iraq be released does not show a new tenderness for civilians but rather for those who were actively hostile to western intervention there, albeit that we recognise that the request had to be couched in language which might appeal to the kidnappers.

81. The assessment that the target of his views has broadened a long way beyond the regime in Jordan is correct. It covers what can usefully be termed global jihad. The groups and individuals whom he has advised cover many countries. The attitude and language of his advice and preaching evinces a global outlook covering Muslim and non-Muslim countries and people; his rejection of the Jordanian regime is based on views which makes him regard non-Islamist regimes more generally as illegitimate, impious and tyrannical, and their supporters as hostile to true Islam.

82. His views on the use of violence in the UK have, we accept, hardened, and his expressions of them do encompass the legitimacy of attacking people in the UK. He may have exercised restraint in the mid/late 90s on occasions, but that we consider, was for tactical reasons, to enable his preaching, fund-raising and other activities in support of extremists to continue. He may have expressed later concern about attacks in the UK for similar tactical reasons, or for the benefit of particular people to whom he was speaking. We do not regard him as seriously seeking to exercise restraint, while the authorities take counter-measures against Islamist extremists. The effect of any restraint would have been only that all the actions which support the operations and activities of jihadist groups continued unabated.

83. His preaching in the mosque, his dissemination of violent propaganda and the advice he has given, would have been important in radicalising his hearers, making them more susceptible to or enthusiastic for the overtures of those who recruit and train individuals for acts of violence, often initially be recruiting them for training abroad, originally in Afghanistan. Of course, in one sense the Appellant is not directly responsible for the purchase of his many books and videos by those who are terrorists. But this is to miss or evade the point. Those purchases are not coincidental or made out of intellectual curiosity. They are intended to provide supportive religious advice for those who seek religious legitimisation for acts of violence to defend or advance Islam as they see it, or to encourage a radicalising of those not yet so converted, or to seek support for radical Islamist causes. Those are the purposes of their widespread dissemination.

84. In short, his views are to be found linked to many terrorist groups and their actions, providing the religious cover they seek; he propagates radicalising views, and his fund-raising is aimed at advancing the Islamist extremist cause."

158. The SIAC added that:

"It is clear that the Appellant's actions legitimise and provide a religious justification for acts of serious violence and terrorism against all manner of persons including ordinary civilians. His views are sought by terrorist groups for that purpose. He preaches violence and seeks to radicalise his audience to an extremist Islamist point of view in which aggressive violence is justified as defence."^[144]

159. At the time of the decision to alter the regime, Mr Othman was stated to be a 'high risk' Category A prisoner. Mr Othman arrived at Long Lartin from Belmarsh in December 2008 as a standard risk category A; in September 2009 he was re-classified as standard risk Category A.

B. SYED TALHA AHSAN

160. Mr Ahsan is a British national. He has no criminal convictions. He comes from Tooting, South London. Mr Ahsan was born on 21 September 1979. He is the subject of an extradition request from the United States Government.
161. The indictment against Mr Ahsan alleges that between 1997 and 2004 he, together with Mr Babar Ahmad (who remains a detainee in the DU) and other persons known and unknown, (i) conspired to provide material support to terrorists, knowing or intending that such support was to be used in furtherance of a conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country and/or to murder and attempt to murder US nationals abroad; (ii) provided and aided and abetted others to provide material support to terrorists, knowing or intending that such support would be used in furtherance of a conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign country and/or to murder and attempt to murder US nationals abroad; and (iii) conspired to kill, kidnap, maim or injure persons or damage property in a foreign country. In particular, it is alleged that one of the means used by the co-conspirators to further the alleged criminal acts was an entity known as Azzam Publications, through which they operated a series of pro-jihad websites based in the United States and elsewhere that were specifically designed to incite readers to violent jihad and to provide material support to terrorist related entities including the Taliban, the Chechen Mujahideen and Al Qaeda.^[145]
162. Mr Ahsan was arrested under a provisional warrant and extradition proceedings against him were begun in July 2006. On 14 June 2007 the Home Secretary ordered his extradition. Mr Ahsan's appeal against that decision was dismissed by the Divisional Court in April 2008,^[146] as was his claim for judicial review. He lodged an application with the ECtHR on 5 March 2008.^[147] The President of the Chamber to which the application was allocated requested, under Rule 39 of the Rules of the ECtHR that Mr Ahsan should not be extradited until further notice.^[148]
163. Mr Ahsan was initially detained at HMP Belmarsh on a normal wing. He arrived at HMP Long Lartin on 22 January 2008.

C. MR ADEL ABDUL BARY AND MR KHALID AL FAWWAZ

164. Mr Bary was born on 24 April 1960. Mr Khalid Al Fawwaz was born on 25 August 1962. They have been detained without trial continuously since July 1999 and September 1998 respectively. From 1998/99 until September 2001 both were detained in Brixton prison as category B prisoners. Immediately after the terrorist outrages in New York and elsewhere on 11 September 2001, they were re-classified as category A prisoners and moved from Brixton prison. Thereafter both remained 'standard risk category' A prisoners.
165. They are accused by the Government of the United States of America of participation in a conspiracy to murder United States citizens, United States diplomats and other internationally protected persons. It is alleged that a key figure in the conspiracy was Osama Bin Laden and that two of the overt acts of the conspiracy were the synchronised bombings of the United States embassies in Nairobi and Dar Es Salaam on 7 August 1998. As a result of the explosion in Nairobi 213 people died and some 4,500 were injured. 11 people died as a result of the Dar Es Salaam explosion.^[149]
166. The US Government sought their extradition under the Extradition Act 1989. Their extradition was ordered by the magistrate; on 8 September 1999 in the case of Mr Al Fawwaz and on 25 April 2000 in the case of Mr Bary, the Home Secretary ordered their return to the United States. They both challenged the Magistrate's decision but the Divisional Court dismissed their respective appeals on 30 November 2000 and 2 May 2001. Their appeals were dismissed by the House of Lords on 17 December 2001.^[150] In relation to these two men, the Divisional Court stated in August 2009: "It cannot now be disputed that there is evidence available to the United States which appears to implicate both claimants in offences of the first order of gravity."^[151]
167. Following consideration of detailed representations by Mr Bary and Mr Al Fawwaz and the US Government, they were informed by letters dated 12 March 2008 that the SSHD had authorised warrants authorising their return to the United States. Their claim for judicial review of that decision was dismissed by the Divisional Court on 7 August 2009.^[152] Although the Divisional Court certified two questions of law as being of public importance, the Supreme Court refused permission to appeal on 17 December 2009. An immediate application was made to the ECtHR which ordered the UK Government not to remove them from the UK until the ECtHR had considered the matter.
168. Mr Bary claims to be an Egyptian human rights lawyer. There is credible evidence that he was tortured by the Egyptian authorities on more than one occasion. He has been sentenced to death in Egypt in absentia for his part in an Egyptian Islamic Jihad plot to kill American and Israeli Tourists in Cairo.
169. Mr Bary was arrested in the UK in September 1998 and has been detained in a number of establishments. He arrived in Long Lartin in November 2005.
170. Mr Al Fawwaz has been detained in the UK since September 1998. He arrived in Long Lartin in August 2007.

'U'

171. "U" was born on August 11^th 1964. With the exception of a period of bail lasting 8 months 'U' has been held, without trial, continuously since February 2001.
172. 'U' arrived in the United Kingdom on 29 November 1994 and claimed asylum. In late 1996 he went to Afghanistan, where he remained until the spring of 1999, when he returned to the United Kingdom. He was refused asylum in the UK on 27 June 2000. In February 2001 he was arrested and charged with an offence in the United Kingdom, but that prosecution was discontinued in May 2001. He was released but re-arrested on immigration grounds. Within two months he was released on immigration bail, but he was rearrested following an extradition request made by the United States of America. That request was discontinued in June 2005. On 11 August 2005 he was served with notice of the SSHD's decision to deport him to Algeria on the grounds of national security, pursuant to section 3(5) of the Immigration Act 1971. He appealed to the SIAC on the ground, among others, that if he were deported to Algeria he would face a real risk of ill-treatment contrary to Article 3 of the ECHR. He was granted bail on 15 April 2008.
173. On 7 November 2006, 'U' waived his right to contest the Secretary of State's case that he posed a threat to national security without, however, making any admissions. The SIAC held that there were credible grounds for concluding that 'U' had held a senior position in a Mujahedin training camp in Afghanistan; that he had had direct links with Usama Bin Laden and other senior Al Qa'eda figures and that he had been involved in supporting terrorist attacks including the planned attack on the Strasbourg Christmas market in 2000 and an earlier plan to attack Los Angeles airport. The SIAC concluded that he posed a significant risk to national security.^[153] However, it is now said that the basis for these allegations is untrue, since they are based on statements of a man convicted in the USA who subsequently made allegations and has since retracted them.
174. The Court of Appeal allowed 'U''s appeal on both "open" and "closed" grounds. The SIAC subsequently rejected the remitted appeals on the closed grounds on 2 November 2007. The House of Lords allowed the Home Secretary's appeal on the "open" grounds on 18 February 2009.
175. He was returned to custody and was transferred on 28 March 2009 to Long Lartin.
176. During his time in Belmarsh he acquired fluent English, he was admitted to the Open University, and graduated with a good degree. He was studying for a Master's Degree when he was granted bail.

E. STEVE CHAMBERS

177. Mr Chambers is a dual US-Jamaican national who reverted to Islam in prison. He has no criminal convictions. He has been detained since January 2003 pending his extradition to the USA upon charges of (non-terrorist) murder and firearms offences. He was transferred to Long Lartin in July 2008. He has a pending appeal to the ECtHR against his extradition.
APPENDIX B THE CONDITIONS AND REGIME IN THE DETAINEE UNIT AT HMP LONG LARTIN

I. THE PHYSICAL CONDITIONS IN THE DETAINEE UNIT

178. The layout of the Unit is shown in a sketch plan and in photographs which we have examined.
179. Each detainee is housed in his own cell. Each cell has a window opening out onto the central open courtyard. The size, lighting, heating ventilation and fittings of each cell is certified as being adequate for health. Each cell has a bed with separate bedding adequate for warmth and health. It has its own washing and toilet facilities, a television and a kettle. There is a dispute, which it is not necessary for us to resolve, about whether each cell has a radio. Any detainee confined in a cell is able to communicate at any time with an officer.
180. The Unit also contains:

(1) a group room, which has a television. This room is also used for the Friday prayers;

(2) a computer room with four workstations;

(3) a mini gym, which opens onto the open air courtyard. Since, September 2009 this has included a new 'Multi-Gym', which has been recently out of action;

(4) an association and games room, which also has fitness equipment;

(5) an area for washing and laundry;

(6) a kitchen/servery where detainees may prepare their own food;

(7) a shower room;

(8) a telephone, accessible with each detainee's personal PIN number; and

(9) an open air courtyard (measuring some 15.7m x 8.4m) with raised vegetable and herb beds.

181. There is also access from the Unit to an exercise yard (measuring some 22.9m x 10.6m), which is open to the sky but, for security reasons, it is surrounded by a high wall topped with razor wire. There is overhead mesh and there is a solid panel surround, preventing the detainees from looking out of the yard and other prisoners from looking in.

II. THE REGIME SINCE 9 DECEMBER 2008

182. Those detained in the Unit may wear their own clothes.
183. The detainees are free to leave their cells from 8am to 12.15pm and from 1.50pm to 7.10pm each day, except on Fridays and weekends when association ends at 5.10pm. They are free to associate with others detained in the DU and with Staff during these hours.
184. The Unit is staffed by a Senior Officer and three other staff, drawn from a pool of 16 officers.
185. Detainees have the same entitlement to visits as other unconvicted prisoners.
186. Muslim Friday prayer services are conducted in the Unit by a prison Imam who also makes a number of other visits each week. The detainees do not now usually have access to the communal Friday prayers in the main prison prayer room. However, arrangements were made for those who wished to do so to attend the communal Eid Prayer and Feast at the end of Ramadan in the main prayer room. Prisoners of other faiths also have access to appropriate clergy and may hold services in the DU.
187. Community psychiatric nurses (who are registered medical nurses) visit the Unit three times a week. There is also a surgery room located in the corridor outside the Unit which has a networked computer giving instant access to inmate medical records. A doctor can be seen at a weekly surgery or by appointment after the surgery has finished in the prison's main Healthcare Unit. He will also attend by appointment at other times. Any medicine prescribed or required is obtained by the nursing staff. Detainees also have access to a Consultant Forensic Psychiatrist, Dr Kenney-Herbert.
188. Detainees may watch television together in the group room, as well as in their own cells. They have access to newspapers. They may also play the games allowed in the association room.
189. Detainees usually have free and unlimited access to computers during unlock hours. They are able to carry out distance learning and can apply for Open University courses. An educational tutor attends twice a week. However, the computer room has been closed since early December 2009. There is a dispute, which we cannot readily resolve, as to the reasons for the continuing closure.
190. Materials reasonably requested for arts, crafts and writing are also provided.
191. There is a selection of books available to detainees on the Unit. At present there are weekly visits to the library on Thursdays. There is an opportunity for a further visit at the weekend if requested. These library visits were not available between December 2008 and June 2009. During that period a selection of library books was available on the Unit and the Library Officer visited the Unit from time to time to address individual requests.
192. Detainees have free and unlimited access to the open courtyard during unlock hours where they may sit if they wish. They are permitted to, and do, tend plants there.
193. Detainees also have free and unlimited access to the gym facilities in the DU during most of the unlock hours.
194. Access to the exercise yard is available between 10.30 and 11am and 3.30 and 4pm, except on Thursdays when access in the morning is between 9.30 and 10am. Access to this yard was withdrawn between April and June 2009 because there were reasonable grounds to suspect that an attempt might be made to escape from the Unit at a weak point in the security fence. This problem has now been remedied and detainees again have access to the exercise yard.
195. Detainees may cook their own food in the kitchen/servery.
196. Detainees may undertake paid work cleaning the Unit thereby earning £16.50 per week. However, the work available is confined to cleaning the unit, which task takes only half an hour a day.
197. Apart from Mr Othman, the detainees' rooms are searched at least once every 28 days, like others classified as Category A prisoners. When he was a high risk Category A prisoner, Mr Othman's room was to be searched at least twice every 28 days. This process was altered temporarily following a number of security incidents in the early part of 2009 as a result of which the other detainees were searched twice in one month.
APPENDIX C Mr PARKER'S NOTICE OF CHANGE OF REGIME "HMP LONG LARTIN NOTICE TO PRISONERS

NUMBER:

DATE: Monday 8^th December 2008

SUBJECT Change to Regime – Detainee Unit

This notice is to advise prisoners and Detainees of changes to the Detainee Unit regime.

As of Tuesday 9^th December 2009 the following g changes will apply:

•    Detainees/Deportees will no longer be able to leave the Unit, with the exception of Healthcare appointments and visits.

•    All activities will take place on the Unit, to include:

Use of the Gymnasium, Exercise, Friday Prayers, Education, Employment, Treatments and Library Provision.

•    Visits will take place in the main visits hall away from other Prisoners with the exception of those assessed as High Risk who will allocated visits in the High Risk room. Detainees/Deportees will be eligible to apply for Family Visits if they meet the criteria.

•    Wages and current pay scales remain unchanged and sessions worked will be paid at the current rate. Detainees/Deportees will no longer lave the Unit to attend Labour or Education but In Cell Educational courses may be available on application after assessment.

•    All those located on the Unit will receive the same entitlements regardless of Detainee or Deportees status with regards to property and pay.

•    A selection of |Library books will be available on the Unit and will be rotated on a regular basis and the Library Officer will visit the Unit weekly to address individual requests.

Ferdie Parker

Governor

HMP Long Lartin"

APPROVED RULING

Lord Justice Aikens:

(I) Amendment to Judgment

Openshaw J and I have reconsidered the representations of Mr Owen about the terms of the concession recorded in the last sentence of the existing paragraph 68 of the approved version of our judgment in this case,  as handed down last Friday morning,  ie. 19 March 2010.    We accept that the concession made by him in the course of questioning Mr Parker was not in the terms as set out in the judgment.    We have, therefore,  made an amendment to the judgment,  by replacing the existing last sentence with the following two sentences:

"Mr Owen accepted,  as is well known,  that mobile phones can be and are smuggled into prisons, even maximum security ones such as Long Lartin.   We are satisfied that Mr Parker would have had legitimate concerns about Mr Othman's ability to get hold of mobile phones in the main prison and his ability to use those to pass unmonitored messages out of the prison,  more or less at will".

(II) Application for Permission to Appeal

We have considered the application of the claimants for permission to appeal the decision to the Court of Appeal. We refuse it, for the following reasons:

(i) so far as we can see,  the only attack made is on the "domestic law" challenge to the decision of Mr Parker.

(ii)  That issue involved the court making a judgment,  on the facts,  of whether the decision of Mr Parker was "reasonable" or to put it another way, whether what Mr Parker did was so unreasonable that no competent prison governor could have contemplated doing what he did.

(iii)  We formed our view after hearing Mr Parker and Mr Holland in the witness box.   

(iv)  We think that there is no reasonable prospect of successfully challenging the conclusions that we have made.

Note 1    All the prisoners in Long Lartin apart from the detainees have been classified as either Category A or Category B prisoners. There are some unconvicted prisoners who are being held on remand in custody and they have been classified as Category A prisoners.     [Back]

Note 2    Mr Steve Chambers, a Jamaican national, who is, coincidentally also a Muslim, has been detained since 2003 pending extradition to the USA for murder and firearm offences and was transferred to Long Lartin in July 2008.    [Back]

Note 3    Mr Babar Ahmad was a claimant but is no longer. The DU has never held more than eleven men.     [Back]

Note 4    This separation reflects Rule 7(2)(a) of the Prison Rules 1999, which rule provides: “Unconvicted prisoners shall be kept out of contact with convicted prisoners so far as the governor considers it can reasonably be done, unless and to the extent that they have consented to share residential accommodation or participate in any activity with convicted prisoners”.    [Back]

Note 5    Introduction to the Report by Anne Owers, HM Chief Inspector of Prisons.    [Back]

Note 6    At one stage there was another detainee who was a Catholic, but he has now left the DU. Muslims make up about 25% of the prison population.    [Back]

Note 7    Under the Anti-Terrorism, Crime and Security Act 2001. That Act, which was subject to a “sunset” provision, was subsequently not renewed after December 2004.    [Back]

Note 8    OO (Jordan) v Home Secretary [2008] EWCA Civ 290, [2008] 3 WLR 798. In February 2009 the House of Lords allowed the SSHD’s appeal and dismissed cross-appeals by Mr Othman. He has now applied to the ECtHR in relation to the risks to which he claims that he will be exposed if he is returned to Jordan.    [Back]

Note 9    Although of Governor grade, Mr Holland is significantly junior to Mr Parker.    [Back]

Note 10    Day 2/page 70/lines 11-13.    [Back]

Note 11    Day 2/page 70/lines 24 -25.    [Back]

Note 12    Day 2/page 71/line 16 to page 72/line 2.    [Back]

Note 13    These were: Mr Othman, Mr Bary, Mr Babar Ahmad and Mr Syed Talha Ahsan.    [Back]

Note 14    See footnote 4 above.    [Back]

Note 15    This provides: “Nothing in this rule shall require a prisoner to be deprived unduly of the society of other persons”.     [Back]

Note 16    Mr Parker said in cross-examination that the letter had been in draft before then: Day 1/page 45/lines 21-25. In retrospect and given the context, it was perhaps unfortunate that such an important letter was sent out on Christmas Day.    [Back]

Note 17    The letter of 1 December 2008 had been sent to Ms Dawn Thompson, in the Directorate of High Security Prisons of HMPS, when Mr Othman was detained at HMP Belmarsh. It noted that Mr Othman and his family had been previously recognised as refugees in the UK. It complained that, in Belmarsh, Mr Othman was detained in the High Security Unit (“HSU”), was the only detainee there and that there was no adherence to the UN High Commissioner for Refugees’ principle that “asylum seekers should be accommodated separately from convicted criminals or prisoners on remand” and that there should be “no co-mingling of the groups”. The letter requested an immediate transfer of Mr Othman to the “Immigration Unit” at Long Lartin.     [Back]

Note 18    We refer to the details of the HMIP Report on the review of the DU further below.    [Back]

Note 19    A consultant psychiatrist at the Bethlem Royal and Maudsley Hospitals.    [Back]

Note 20    A consultant psychiatrist at the Bethlem Royal Hospital who has a particular expertise in suspected autistic conditions.    [Back]

Note 21    A consultant forensic psychiatrist. This report concerned Mr Ahsan only and was prepared in connection with his contested extradition hearing. Dr Davison examined Mr Ahsan’s psychiatric history in considerable detail.    [Back]

Note 22    During the period 1 December 2006 to 16 April 2009 Mr Wagstaffe was the Director of High Security for HM Prison Service. He is now the Director of Offender Management for Yorkshire and Humberside.    [Back]

Note 23    A consultant forensic psychiatrist at the Bracton Centre and at HMP Belmarsh.    [Back]

Note 24    Review on the Effects on Health of the Regimes in the Special Secure Units at Full Sutton, Whitemoor and Belmarsh Prisons, produced by a committee chaired by Sir Donald Acheson, former Chief Medical Officer to HM Government.    [Back]

Note 25    A consultant forensic psychiatrist.    [Back]

Note 26    The CPT visited Long Lartin and Full Sutton prisons in November 2005 to examine the treatment and conditions of 22 detainees in those prisons, with special attention being given to their mental health. The report was dated 10 August 2006.     [Back]

Note 27    See, eg. R(Daly) v SSHD [2001] 2 AC 532 at para 5 per Lord Bingham of Cornhill.    [Back]

Note 28    R v Board of Visitors of Hull Prison, ex p St Germains [1979] QB 425 at 455, per Shaw LJ.    [Back]

Note 29    Mr Owen QC, for the claimants, disavowed any allegation of bad faith, although that had been clearly alleged at an earlier stage in the proceedings.    [Back]

Note 30    (2006) 42 EHRR 41, particularly at paras 69-71.     [Back]

Note 31    (2008) 46 EHRR 41, particularly at para 68.     [Back]

Note 32    Ramirez Sanchez v France [2007] 45 EHRR 49, particularly at para 117.    [Back]

Note 33    [2004] 38 EHRR 46.    [Back]

Note 34    Ibid para 48.    [Back]

Note 35    Ibid para 49.    [Back]

Note 36    Ibid para 50.    [Back]

Note 37    Ibid para 51.    [Back]

Note 38    (2005) 41 EHRR 45.    [Back]

Note 39    (2001) 33 EHRR 38    [Back]

Note 40    Para 115.    [Back]

Note 41    [2006] 2 AC 148.    [Back]

Note 42    [2009] EWHC 2068 Admin    [Back]

Note 43    (2008) 46 EHRR 41 at para 68.    [Back]

Note 44    Raninen v Finland (1998) 26 EHRR 563 at paras 63-64.    [Back]

Note 45    (1981) 3 EHRR 161. The case concerned men who had been convicted of “terrorist –type” offences in Northern Ireland and who were serving prisoners in HMP The Maze. They protested at the change of regime imposed in 1976. In consequence the protesters were not permitted association with the rest of the prison community. This allegation was one of many brought before the Commission. The Commission rejected it, finding that the removal was a consequence of the disciplinary punishment of loss of privileges imposed with a view to bringing the protests to an end. Therefore any interference was in accordance with the law and justified.     [Back]

Note 46    [2006] 2 AC 148.     [Back]

Note 47    See paras 32 per Lord Bingham of Cornhill, 117 – 118 per Lord Brown of Eaton-under-Heywood at para 117 -118. Lord Brown dissented on whether the interference was “in accordance with law” within Art. 8(2). Lord Scott of Foscote agreed with Lord Bingham on Article 8 and Lord Brown on the application of Art. 8(1): para 101-102. Lord Hope of Craighead doubted Art. 8(1) applied on the facts: par 80. Lord Steyn dissented.    [Back]

Note 48    [2010] 1 WLR 123    [Back]

Note 49    [2008] 48 EHRR 1169 at para 66.    [Back]

Note 50    R (Wood) v Commissioner of Police of the Metropolis (supra) at para 21.    [Back]

Note 51    See,R(Wood) etc. at paras 23 and 24 per Laws LJ. Although Laws LJ dissented on the application of Art. 8(2) to the facts of the case, the majority, Dyson LJ and Lord Collins of Mapesbury, agreed with his analysis of the scope of Art 8(1) and its application to the facts of that case: see paras 64 and 96.    [Back]

Note 52    S v United Kingdom (2008) 48 EHRR 1169 at para 101 - 103. See also R(Wood) v Comr of Police (supra) paras 82 and 83 per Dyson LJ.    [Back]

Note 53    Ibid.    [Back]

Note 54    R(Wood) v Comr of Police (supra) at para 85 per Dyson LJ.    [Back]

Note 55    Dated 9 October 2009.    [Back]

Note 56    Para 22.    [Back]

Note 57    Para 23.    [Back]

Note 58    Para 24.    [Back]

Note 59    Para 26.    [Back]

Note 60    The letter referred to the vulnerability of some prisoners to radicalisation and the possibility of detainees having access to mobile phones if allowed in the main prison.    [Back]

Note 61    Para 29.     [Back]

Note 62    Referred to as “U” pursuant to the anonymity order granted by Dobbs J on 29th July 2009.     [Back]

Note 63    Para 29.     [Back]

Note 64    At para 4.    [Back]

Note 65    Day 1/page 49/line 10.    [Back]

Note 66    Day 1/page 57/line 7.    [Back]

Note 67    Day 1/page 61/line 16 to page 63/line 8.    [Back]

Note 68    Parker 1, para 7.     [Back]

Note 69    Day 1/page 69/line 20 to page 71/line 24.    [Back]

Note 70    Day 2/page 14/line 20 – page 15/line 8.    [Back]

Note 71    Day 2/page 10/line 9 to page 15/line 8, summarising also evidence given on Day 1.    [Back]

Note 72    Day 2/page 16/line 8 – page 17/line 1. See also Day 2/page 24/lines 4 – 15.    [Back]

Note 73    Day 1/page 71/lines 7 – 24.    [Back]

Note 74    Day 1/page 77/lines 9 – 16.    [Back]

Note 75    Day 1/page 74/line 2 to page 75/line 15.    [Back]

Note 76    Day 2/page 37/lines 1-21.    [Back]

Note 77    Day 2/page 41/line 7 to page 42/line 4.    [Back]

Note 78    Day 2/page 44/line 19 – page 45/line 2.    [Back]

Note 79    Parker 4/para 8.    [Back]

Note 80    Wagstaffe 2/para 5.    [Back]

Note 81    Day 2/page 20/lines 6 – 24.    [Back]

Note 82    Other than the SIAC decisions, in particular that in [2007] UKSIAC 15, quoted in Appendix A at para 10, to which we refer further below.    [Back]

Note 83    Day 1/page 57/line 7.    [Back]

Note 84    Day 1/page 71/lines 16-24.    [Back]

Note 85    Day 1/page 55/lines 2-19.    [Back]

Note 86    Day 2/page 7/line 22 – page 8/line 7.    [Back]

Note 87    Parker 2/para 3.    [Back]

Note 88    Day 2/page 13/line 4 – page 14 line 13.    [Back]

Note 89    See: Parker re-examination: Day 2/page 41/line 7 to page 42/line 25.    [Back]

Note 90    [2007] UKSIAC 15, quoted in Appendix A para 10 and referred to in Mr Parker’s first statement at para 19.    [Back]

Note 91    See para 1.6 of the Report. Mr Parker was, of course, the Governor of the prison at the time of the inspection and the report.    [Back]

Note 92    See Parker re-examination Day 2/page 41/line 13 – page 42/line 17.    [Back]

Note 93    See Parker cross-examination Day 2/page 22 lines 4 – 22.    [Back]

Note 94    See Parker cross-examination Day 2/page 22/lines 18 -22.    [Back]

Note 95    See cross-examination Day 1/page 75/lines 3 -13.    [Back]

Note 96    See cross-examination Day 1/page 54/lines 21-23.    [Back]

Note 97    Parker 1/para 28    [Back]

Note 98    Holland cross-examination: Day 2/page 72/line 3 to page 73/line 18.    [Back]

Note 99    HMIP report para 1.4.    [Back]

Note 100    HMIP report paras 1.6, 3.1, 3.8.    [Back]

Note 101    HMIP report paras 2.13 and 2.14.    [Back]

Note 102    HMIP report para 3.1.    [Back]

Note 103    HMIP report para 3.1.    [Back]

Note 104    This is implicit in the letter of 7 January 2009 from Mr Parker to Mr Newcomen, HM Deputy Inspector of Prisons: “In introducing the revised regime we are clearly sensitive of the risks of increased isolation this imposes on those accommodated in the unit”.    [Back]

Note 105    In particular that of the SIAC in February 2007: [2007] UKSIAC 15 at paras 79-84: see Appendix A for quotations.    [Back]

Note 106    Para 6.2(2) describes the provision in the DU as “…inadequate. There is too little for the men to do and, thrown back on their own company, they have become noticeably more introspective and listless. A better regime is a matter of urgency”.    [Back]

Note 107    Mr Parker accepted this in cross-examination: Day 2/page 7/line 5 to page 8/line 7.    [Back]

Note 108    Of course there could be alterations at the margins of the last possibility, but those were the principal options.    [Back]

Note 109    Paras 72-73 above.    [Back]

Note 110    Paragraph 6.2(2).    [Back]

Note 111    Paragraph 18.    [Back]

Note 112    These include the Acheson report, referred to above.    [Back]

Note 113    Report of Dr Quinton Deeley and Dr Dene Robertson dated 7 July 2009, page 31.    [Back]

Note 114    Report pages 37-38.    [Back]

Note 115    Cummings report para 10.    [Back]

Note 116    Cummings report para 33.    [Back]

Note 117    Grounds report: “Observations” page 4.    [Back]

Note 118    Cummings report paras 75 - 77.    [Back]

Note 119    Report of March 2009, “Summary and Opinion” para 3.    [Back]

Note 120    Page 174 of the bundle.    [Back]

Note 121    Summary and Opinion para 1.    [Back]

Note 122    See: Dr Robertson’s report of 3 March 2009, page 22..    [Back]

Note 123    Report paragraph 61.    [Back]

Note 124    Report paragraph 62.    [Back]

Note 125    Report page 14.    [Back]

Note 126    [2009] EWHC 2068 Admin paras 24 – 28.    [Back]

Note 127    Para 38.    [Back]

Note 128    Para 41.    [Back]

Note 129    Para 32. Two detainees have seen an ophthalmologist who has confirmed a deterioration in eyesight quality.    [Back]

Note 130    Para 38.    [Back]

Note 131    Para 77.    [Back]

Note 132    Paras 80 – 81.    [Back]

Note 133    Para 107.    [Back]

Note 134    Para 111.    [Back]

Note 135    Para 124.    [Back]

Note 136    Paras 125-126.    [Back]

Note 137    Mr Babar Ahmad, a British national, was a claimant but is no longer.    [Back]

Note 138    [2005] 2 AC 68, [2004] UKHL 56    [Back]

Note 139    Othman v SSHD [2008] UKSIAC 15 at [2].    [Back]

Note 140    Othman v SSHD [2008] UKSIAC 15 at [3].    [Back]

Note 141    RB (Algeria) v SSHD [2009] UKHL 10; [2009] 2 WLR 512.    [Back]

Note 142    Application No. 8139/09.    [Back]

Note 143    [2007] UKSIAC 15    [Back]

Note 144    See [105].    [Back]

Note 145    See: R (Syed Talha Ahsan) v the DPP [2008] EWHC (Admin) at [4] and [5].    [Back]

Note 146    R (Syed Talha Ahsan) v the DPP [2008] EWHC 666 (Admin) at [10] to [13].    [Back]

Note 147    Application No. 11949/08    [Back]

Note 148    Statement of Facts by ECtHR of 13 February 2009.    [Back]

Note 149    See: R (Adel Abdul Bary and Khalid Al Fawwaz) v SSHD [2009] EWHC 2068 (Admin) at [1].    [Back]

Note 150    See: R (Al Fawwaz and others) v the Governor of Brixton Prison [2001] UKHL 69; [2002] 1 AC 556.    [Back]

Note 151    See: R (Adel Abdul Bary and Khalid Al Fawwaz) v SSHD [2009] EWHC 2068 (Admin) at [48].    [Back]

Note 152    Ibid.    [Back]

Note 153    See: RB (Algeria) v SSHD [2009] UKHL 10; [2009] 2 WLR 512 per Lord Phillips of Worth Matravers at [30] – [32].    [Back]