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Cite as: [2011] EWHC 286 (Admin)

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		Neutral Citation Number: [2011] EWHC 286 (Admin)
		Case No: CO/6271/2010 AND CO/6733/2010

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

Royal Courts of Justice
Strand, London, WC2A 2LL

18/02/2011

B e f o r e :

THE HON MR JUSTICE IRWIN
____________________

	The Queen On the Application of (1) KAMEL BOURGASS (2) TANVIR HUSSAIN	Claimant
	- and -
	SECRETARY OF STATE FOR JUSTICE	Defendant

____________________

Mr Hugh Southey QC (instructed by Birnberg Peirce & Partners) for the Claimant
Mr Sam Grodzinski (instructed by The Treasury Solicitors) for the Defendant
Hearing date: 5 November 2010
____________________

HTML VERSION OF JUDGMENT
____________________

The Hon Mr Justice Irwin:

Introduction

These Claimants are both prisoners who have spent periods of time in segregation. Their cases have been heard together since they give rise to overlapping questions of law in relation to the decisions taken concerning their segregation. As briefly formulated by the Claimants, the relevant questions are as follows:

"[1] Whether the procedure adopted when the Claimants were segregated, and following their segregation, amounted to a breach or breaches of Article 6 of the European Convention on Human Rights.

[2] Whether the procedure adopted in the case of the first Claimant Kamel Bourgass breached common law procedural fairness.

[3] Whether in relation to the second Claimant Tanvir Hussain the regime in the segregation unit was unlawful as constituting a breach of prison service policy and/or Article 6."

Factual Background – Kamel Bourgass

Much of the essential factual background from the Defendant's point of view is set out in the witness statement of Steven Garvie of 5 August 2010. Mr Garvie is the Head of Security at HMP Whitemoor. A good deal of the history is not in issue.

In 2003 Kamel Bourgass was arrested for the Wood Green Ricin terrorist conspiracy. In the course of the arrest, he injured 4 police officers and killed one police officer using a knife. He was convicted of the murder of the deceased officer, attempted murder in relation to two further officers and wounding of a third. He is a serving a life sentence in relation to those offences. In 2005 he was convicted of conspiracy to commit public nuisance by the use of poisons and/or explosives and is currently serving a sentence of 17 years imprisonment for that offence.

Mr Bourgass was initially detained at HMP Frankland. Having been segregated within that prison, he refused to leave the segregation unit and return to a normal prison location. As a consequence he was transferred to HMP Wakefield on 10 October 2008.

The Defendant's case is that when in Wakefield he was perceived to have considerable influence over other prisoners, and to be bullying and intimidating them. In July 2009 another "problematic prisoner" was being moved into HMP Wakefield, and it was felt that the presence of both these prisoners would be a threat to the good order and security of the establishment. Hence, on 17 July 2009 Mr Bourgass was again transferred from HMP Wakefield to HMP Whitemoor.

It is said that following his arrival at HMP Whitemoor, the Claimant again sought to press his views on other prisoners, including pressurising them to attend prayers, stipulating when and how they should pray, what they should eat, what they should read and persuading them not to co-operate with staff, particularly female prison staff. On 14 February 2010 the Claimant was placed on HMP Whitemoor's "Anti-Bullying Stage 2" regime, but according to Mr Garvie he failed to engage in the process and continued his attempts to intimidate other prisoners.

On 10 March 2010 Mr Bourgass was involved in a serious incident during which he was assaulted. The prisoner who assaulted him, who was referred to throughout this case as MS, claimed to have been bullied by Mr Bourgass. According to the summary prepared for a subsequent Segregation Review:

"MS…claims to have been bullied by Mr Bourgass, who had spread rumours about him and told fellow Muslim prisoners not to talk to him. This was supported by other intelligence [MS] stated he could not take it anymore so after confronting Mr Bourgass he assaulted him. CCTV supports this. The assault was out of character for [MS] who previous to this associated with Mr Bourgass almost daily (evidenced on Mr Bourgass's ABS log)."

The decision to segregate the Claimant under Prison Rule 45 for reasons of good order and discipline was made by the Duty Governor as a reaction to this incident, as it was initially believed to be a fight. The segregation was reviewed in accordance with Prison Rule 45(2) and Prison Service Order 1700 on 13 March, 23 March and 6 April and it was decided that he should continue in segregation, because it was considered his attempts to influence other prisoners had caused MS to assault him out of frustration. There had been an escalation of violence within the establishment "for faith-related reasons". It was believed that the Claimant was involved in this and his influence over other prisoners gave rise to concern for the good order and security of the establishment.

On 20 April 2010 the Claimant was informed that he was to be removed from segregation. Following a reshuffle of the prison population, it was decided to give him the opportunity to return to a normal location under an "Unacceptable Behaviour Compact". In compliance with that decision, the Claimant was returned to a normal location on 22 April. However, on 23 April a very serious incident took place within the prison which led to the Claimant's further segregation. The prisoner MS was the subject of an attempted murder. He was attacked at Friday prayers and severely injured, requiring 50 stitches to his face. He was only saved from further injury by the intervention of staff. Before Friday 23 April, the perpetrator of this assault and MS had both attended Friday prayers together on a regular basis without incident. On the morning of 23 April, the man who assaulted MS had been seen on CCTV in conversation with the Claimant Mr Bourgass. The prison authorities were in receipt of intelligence suggesting that the Claimant was involved in organising this assault and that the assault on MS was retaliation for the assault on the Claimant on 10 March. It was not suggested that the Claimant had any direct physical part in this attack, but rather that he was responsible for instigating it.

The initial renewal of segregation on 23 April was the decision of Governor Ian Colley, Segregation Unit Manager. A member of the Independent Monitoring Board ["IMB"] was informed of the renewed segregation on the afternoon of 23 April. Under PSO 1700 the maximum period of initial segregation under Prison Rule 45 is 72 hours and the decision on this occasion was to segregate until 26 April.

The first meeting of the Segregation Review Board looking at Mr Bourgass's case took place on 26 April 2010, attended amongst others by a Governor, a member of the Healthcare Department, a member of the Mental Health team, an IMB member and a Segregation Unit Senior Officer. The Review Board decided there was no evidence of a reduction in the risk presented by the Claimant and he should therefore remain in segregation.

The next review took place on 4 May 2010 and was attended by a similar range of personnel, including once more a member of the IMB. At that meeting it was decided that the Claimant should be assessed for transfer to a close supervision centre ["CSC"]. There is a requirement in PSO 1700 that prisoners held in segregation for more than 3 months should be considered for an assessment either for a Dangerous Severe Personality Disorder Unit or a CSC. The latter is a specialist unit for particularly dangerous or disruptive prisoners.

With the possibility of a transfer to a CSC in mind, further reviews of the Claimant took place on 18 May, 1 June, 15 June, 29 June, 13 July and 27 July. The Claimant was invited to attend these meetings but declined to do so until 27 July.

In the meantime, following an exchange of correspondence, the Claimant issued Judicial Review proceedings on 2 June 2010. An acknowledgement of service was filed on 17 June 2010 with summary grounds of resistance, and detailed Grounds of Defence were served and filed on 2 August 2010, permission having been granted to the Claimant to seek judicial review by Karon Monaghan QC, Deputy High Court Judge.

The Claimant's response to the Defendant's factual case is set out partly in the Grounds, partly in witness statements of his solicitor and partly in his witness statement of 14 October 2010.

The Claimant rejects the suggestion that he has ever been involved in bullying or forcing other prisoners to change their faith. He denies that he has ever tried to convert or "call" anyone to Islam. His instructions to his solicitor are that he:

"generally keeps himself to himself and rarely associates or speaks with non-Muslim prisoners other than to exchange simple greetings. When he talks with other Muslim prisoners the conversations are about mundane matters such as prayer times, which direction to face when praying, whose cell they should pray in together when the afternoon prayer times fall during association period and so forth."

The Claimant denies that he has ever sought to influence other prisoners in the way they follow their Muslim religion or otherwise.

He also denies that he had any role in instigating or organising the assault on MS on 23 April 2010. The Claimant emphasises that the police officers charged with investigating the assault on MS have made it clear that they do not intend to charge him with any criminal offence. Mr Bourgass denies he has any kind of poor attitude to prison staff and maintains that he has always been polite to staff including female staff. The Claimant holds the belief that he has been targeted by others because of the stigma surrounding his offence and the fact that he is Muslim. He believes he is subjected to frequent attacks and false information given to officers about him for suspect motives.

The Claimant expressed his contentment at his transfer from Wakefield to Whitemoor because "I was uncomfortable being around so many prisoners convicted of sex offences (the main population of the prison)". However Mr Bourgass asserts that when in February 2010 he was told that he was being placed on the Anti-Bullying Strategy at Whitemoor, he attended two Review Boards and submitted complaint forms denying that he had ever been involved in bullying anyone and asking for information about what he was alleged to have done. There was a response from the prison dated 15 February 2010 which stated that he had been placed on ABS "due to general observations ….[and] ….to monitor your associations". He was not satisfied with the response and invoked the next stage of the complaints procedure on 17 February 2010. In the course of that, he denied any involvement in bullying and asking what he was alleged to have done. This produced a further response from the prison which stated that the action had been taken as a result, at least in part, of staff observations of the Claimant's interactions with other prisoners. Further explanation was given on 24 February 2010, in the course of which the relevant Governor observed:

"there are a number of entries in the wing observations book which indicate your behaviour amounts to bullying and intimidation of other prisoners. It would appear that you attempt to restrict other prisoners from availing themselves of all the facilities available on the wing. It would appear you attempt to influence the activities and behaviour of other prisoners. All of this information is from staff observations. The staff observation book is not a document which prisoners are allowed access to. There is therefore no documentation to show you."

In relation to the suggestion that he had instigated the attack on MS, the Claimant accepts that he had indeed spoken to the prisoner who mounted the attack, during the 24 hours between his release from the first period of segregation and the attack being mounted. He had been placed on to the same spur as the relevant prisoner and "during those 24 hours I spoke to approximately 6 or 8 other prisoners on the same spur". The conversation on that day was of no significance and he did not instigate the attack.

The Claimant gives his reasons for not attending any of the review procedures which were conducted. In the immediate aftermath of the attack on MS, the Claimant was spoken to by the Governor at HMP Whitemoor on or around 30 April 2010 and was informed that he was being referred to the CSC. He did not attend the Segregation Review Boards that were held on 4 and 18 May or 1 June, believing that he would be given the same information as to a CSC referral justified by his involvement in the assault on 23 April and that no further details would be provided to him. In his view, his denials of any involvement in the assault were being dismissed and "no proper disclosure was going to be provided and so he saw no purpose in participating in the process further". It appears that the Claimant again attended Review Boards as from 27 July 2010.

On 7 September 2010, the Central Case Management Unit decided that Mr Bourgass should not be transferred to a CSC but gave consideration as to whether he could safely be located not in segregation at another High Security prison. He was subsequently transferred out of HMP Whitemoor and away from the Segregation Unit.

Facts and Procedural Background – Tanvir Hussain

Mr Hussain is a High Risk Category A prisoner who was convicted of Islamic orientated terrorist charges in 2009. He was a Category A prisoner in HMP Frankland on 25 April 2010, when he was discovered to have carried out a serious attack on another prisoner (Prisoner A) resulting in wounds to the victim's face. The attack took place in a cell and prison staff were alerted by the shouts of the victim. Mr Hussain was observed striking Prisoner A in the face with an object. When asked what he used to mount the attack, Mr Hussain replied "look on the floor in the cell and you will find it" and a weapon was found. Mr Hussain was immediately removed from the scene and placed in the Segregation Unit.

A Disciplinary Adjudication took place on the following day 26 April 2010 and the Adjudicator decided to refer the matter to the police in the light of the seriousness of the charge. On the same date, Governor Greener exercised his authority under Rule 45 (1) of the Prison Rules 1999 to segregate the Claimant for the maintenance of good order or discipline. In reaching this decision, Governor Greener states that he:

"…..took into account the very serious nature of the charge against the claimant, the severity of the physical attack and the fact that the attack appeared to have arisen as a result of a mundane disagreement with the victim over an item of food and the risk that …….the Claimant posed to other prisoners. I also gave serious consideration to the risks of violent physical attack upon Mr Hussain in …..possible reprisal from the victim….and his peers."

Mr Greener sets out in his witness statement how he also considered whether the Claimant's risk could successfully be managed by means of transfer to another wing, closer supervision on normal location or transfer to another establishment. However he stated that:

"I was and remain of the opinion that transfer to another wing or establishment would have the effect of simply moving the risk to another location rather than addressing it and allowing it to be safely managed."

Mr Greener also explains that there was intelligence information which linked Mr Hussain with the:

"conditioning of other vulnerable segregated prisoners who are susceptible to manipulation due to specific mental health needs. Three such prisoners have advised Segregation Unit staff that they have changed religion from Christianity to Islam and that they have been converted through their cell windows by another prisoner."

These prisoners had approached the establishment Imam, who became concerned as to the manner of their conversion. Security intelligence suggested that Mr Hussain had preached Islamic ideals through his cell window in "determined attempts to convert non-Muslim prisoners to his own interpretation of Islamic ideals. Concerns are that Mr Hussain's interpretation of the Koran are in line with his terrorist beliefs and conviction; and, promulgation of his ideals have the potential to cause serious disruption within the Segregation Unit as well as within the general prisoner population."

The Segregation Review Board first met in relation to Mr Hussain on 27 April 2010. It was attended by amongst others a governor, a member of the IMB and a member of the prison chaplaincy. The Review Board decided that the risks presented by the Claimant were such that he should remain in segregation. Further meetings of the Review Board were held on 5 May, 19 May, 2 June, 16 June, 30 June and 14 July 2010. On each occasion, the membership of the Review Boards included at least one governor and at least one member of the Independent Monitoring Board, in addition to members of the Chaplaincy, members of the Mental Health Unit or Psychology Unit and others. On each occasion, the governor in attendance in the Review Board's was not the governor involved in the original decision to segregate. The Claimant was given the opportunity on each occasion – an opportunity which he took up – of attending the meetings and making detailed representations. On each occasion the Review Board concluded that continued segregation was justified.

Judicial Review proceedings were issued on 15 June 2010. Mr Hussain remained segregated until October 2010.

Just as this judgment was in final draft, Mr Hussains' solicitors communicated with the Court on 8 February 2011. The Crown Prosecution Service had written to the solicitors on 3 February notifying them that they had decided to discontinue proceedings for assault occasioning actual bodily harm in relation to the episode on 24 April 2010, on the grounds that "there is not enough evidence to provide a realistic prospect of conviction".

Part of this Claimant's complaint is that whilst segregated he was informed that he can only use the telephone on every 3^rd day. On his "allotted rota day" he was permitted to make a short call to his family and a 10 minute call to his solicitors. If the 3^rd day fell on a weekend, then effectively the opportunity to make a legal call was missed and the Claimant had to wait for the next 3^rd day rotation. The Claimant complains this routine was stuck to rigidly, regardless of whether the prisoner:

"……is a potential (or actual) Claimant in judicial review proceedings and requires urgent contact with his lawyers in relation to matters connected …….."

The Claimant submitted daily applications to make calls to his solicitors both in relation to the judicial review proceedings and in relation to his then pending criminal appeal cases.

Mr Greener deals with the question of access to telephones on the segregation unit in his witness statement. He explains that the segregation unit at HMP Frankland contains 28 cells, all intended for single occupancy. The cells are distributed over three landings. The Unit contains two telephones one on the ground floor and the other on the first floor. The telephone on the ground floor is:

"Largely reserved for prisoners who have recently been violent towards staff, in order to avoid the need to accompany such prisoners up and down stairs".

Mr Greener goes on to explain that in order to ensure fair access to the telephones within the segregation unit, a rota system is in place which allows each prisoner reasonable access to a telephone, sometimes daily, but as a minimum once within every three day period. Staff will attempt to allow more frequent access to prisoners who are appealing their sentences. Where increased segregated prisoner population places an increased demand on the prisoner's telephone, a prisoner is provided with a solicitor's letter. Mr Greener sets out how in a sample period of 16- 22 June the Claimant made telephone calls on 16, 17, 19, 21 and 22 June. On 18 June he requested a legal call but the telephone was unavailable and so he was offered the opportunity to send a legal letter. He made no request to use the telephone on 20 June.

The suggestion on behalf of Mr Hussain, in evidence from his solicitors, is that there is a real restriction on his telephone communication, not only by the limited number of calls but by the arbitrary time when the calls may be made during the day and by the limit on the length of any given call. There is also a complaint about the delay in delivery of correspondence, the limitations on access for visits and the length of visits. The solicitors complain that they have been able to attend the Claimant at Frankland:

"…..six times during the nearly two months since he was segregated on 25 April 2010. These visits have each lasted only about one hour and fifteen minutes. This is because of the length of time it takes to get through to the legal visits area……"

The nub of the complaint in relation to phone access is that there is an excessive restriction on contact with the prisoner's lawyers, that a prisoner is not permitted or facilitated to call their solicitor on any particular date, and that this Claimant has been denied access to telephones when the segregation unit lacks resources.

The Prison Rules

Rule 45 of the Prison Rules 1999 provides:

"45 Removal from association

(1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association accordingly.

(2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period.

(3) The governor may arrange at his discretion for a prisoner removed under this rule to resume association with other prisoners at any time, and in exercising that discretion the governor must fully consider any recommendation that the prisoner resumes association on medical grounds made by a registered medical practitioner or registered nurse working within the prison.

(4) This rule shall not apply to a prisoner the subject of a direction given under rule 46(1)."

Segregation of prisoners is governed by ministerial policy set out in Prison Service Order 1700.

Salient features of PSO 1700 can be summarised as follows. At page 9 the policy stipulates that:

"Governors/directors must ensure that the restrictions on prisoners segregated under Prison Rule 45 (YOI 49) are no more than are necessary to protect the prisoner concerned or to maintain the good order or discipline of the establishment. The regime for segregated prisoners …..should be as full as possible and only those activities that involve associating with main stream prisoners should be curtailed. In-cell education or work that could be done in-cell …..should be encouraged. Access to activities such as domestic visits, legal visits, use of the telephone, canteen exercise and showers should be comparable to those for a prisoner held on normal location".

At page 24 the policy recites that:

"Research into the mental health of prisoners held in solitary confinement indicates that for most prisoners there is a negative effect on their mental wellbeing and that in some cases the effects can be serious. A study by Grassian and Friedman (1986) stated that, whilst solitary confinement would be difficult for a well adjusted person, it can be almost unbearable for the poorly adjusted personality types often found in a prison."

The policy goes on to summarise the effect of European legal authority, the potential for segregation to give rise to self harm or other serious mental consequences, the importance of safeguarding and promoting the mental health of prisoners held in segregation, and at page 25 suggestions as to how establishments can set out to achieve that. One of the suggestions in this part of the policy document reads as follows:

"Keeping in touch – prisoners should be encouraged to keep in touch with their families and friends as they will be able to provide support through difficult periods. Establishments must ensure that prisoners in segregation are able to receive visits, use the telephone and write letters (with assistance where necessary)."

At pages 28 and following, the policy sets out the procedure for giving information to prisoners segregated under Rule 45. The key points are: the prisoners must be told orally and in writing the reasons why they are being held in segregation, when the first review of segregation will take place and whether they will have the opportunity to attend the meeting; informed of what regime the prisoner will "have access to" pending the first review board; and the obligation upon the authorities to permit the prisoner to attend these reviews. In relation to those undergoing continuing segregation, the policy stipulates that the initial Segregation Review Board will be held within 72 hours and that subsequent Boards are to be held at a frequency to be agreed locally but at least every 14 days. The policy stipulates that those attending the Review Board including IMB members and Chaplains should seek, where possible, to grant a private interview to the prisoner between reviews: "to determine whether there is anything they can contribute to his/her care and management".

The policy stipulates that the prisoner is to be kept informed about his or her segregation and about the outcome of Review Boards. If segregation is to continue as a result of the decision of a Board the prisoner is to be told the reason why, both orally and in writing. The reasons given should reflect the discussions held during the Segregation Review Board and noted on the relevant form. The prisoner is also to be told when the next review of segregation will take place, be given the opportunity to attend for at least some of the review hearing and given the opportunity to present his views.

At page 34 and following, the policy stipulates that all closed establishments must have local procedures in place to monitor and review the use of segregation. Part of that obligation is to conduct individual analyses on particular groups of prisoners and the first example given is that:

"Prisoners held in segregation for long continuous periods (e.g. 3 months or more). Such prisoners should be considered for assessment for a DSPD (Dangerous and Severe Personality Disorder) unit or CSC (close supervision centre). A particular review is required for prisoners undergoing continued segregation beyond the 3 month stage or 6 months if the prisoner is in the High Security Estate."

A significant part of the policy sets out the role of the independent monitoring board members. The relevant passage begins on page 37 of PSO 1700. The IMB are to be notified within 24 hours of the segregation of any prisoner. A member of the IMB is to speak to the prisoner and scrutinise the paperwork authorising initial segregation. The IMB member should also speak to the operational manager who authorised initial segregation, if they have any concerns about the decision at the outset. Prisoners in segregation are to be seen on each rota visit by IMB members and views or observations recorded on the prisoners Segregation History Sheet and Board members records.

There is then a significant provision as follows:

"If at any time an Independent Monitoring Board member has a serious objection to the continued segregation of a prisoner they should approach the duty governor to express their concerns. If this fails to result in a satisfactory and reasonable outcome the IMB member should follow the laid down procedures for IMB objection to continued segregation."

The policy goes on:

"A member of the Independent Monitoring Board should aim to attend Segregation Review Board …..their role is to:

(1) To monitor and oversee the decision making process.

(2) To be satisfied that the laid down procedures have been followed.

(3) To be satisfied that a reasonable decision has been reached by the Review Board. This is defined as reasons which are rational and understandable (this does not necessarily mean that the individual member must agree with the decision).

Where it has not been possible for a member of the IMB to attend the Review Board they have a duty (as does the Governor to facilitate) to review the paperwork and interview the prisoner and where necessary members of the panel at the earliest opportunity afterwards……..

If the representative does not think a decision of the Review Board is reasonable in the light of the circumstances known at the time and has been unable to resolve the matter satisfactorily with the operational manager chairing the Board then they must follow the procedures for IMB objection to continued segregation."

The procedure for an IMB objection is then set out and it is sufficient to say it involves written objections which must go to the:

"(4) In-charge Governor/Director of the establishment. The in-charge Governor/Director will make a written response to the Board member as soon as possible and in any case within 24 hours. Both in-charge Governors/Directors and members of the Independent Monitoring Board should make every effort to resolve the situation at local level."

(5) If it has not been possible to resolve the issues raised in the formal objection, a copy of all the written paper work should be sent to the Regional Manager Custodial Services/DOM for consideration. The Regional Manager Custodial Services should arrange to meet the member of the IMB or discuss the case over the telephone and determine the action to take as quickly as possible and in any event within 5 working days.

(6) If the IMB are still concerned about a relevant decision then they have an obligation to bring it to the attention of the Chief Operating Officer of NOMS."

Evidence and Submissions Following the Hearing

At the conclusion of the hearing I asked both parties to address, in evidence and submissions if desired, three questions designed to throw more light on how the Review Board system operates in practice. The questions are as follows:

(1) Where the segregation procedure relies to a significant extent on intelligence or other material that cannot be disclosed, is there an assessment of that material at fortnightly Segregation Review Board meetings?

(2) Is it normal practice for IMB members to be present when this assessment takes place?

(3) Is it normal practice for the prisoner to be present at Segregation Review Board meetings?

Both sides have submitted evidence which, together with additional submissions, reached me in December 2010. In her second witness statement, Karina Hay, Head of Policy for Segregation at the National Offender Management Service, addressed the questions as follows:

"Where prisoners are segregated under Prison Rule 45, the reasons for their segregation may be based wholly or in part on what can generically be described as "security information". All security information received in a prison establishment is assessed by specially trained staff in the Security Department and is graded according to the reliability of the source and of the information itself. Some of the security information will be ….highly sensitive. The disclosure of sensitive information beyond those who have a strict need to know it for operational reasons, can jeopardise the safety of the source of the information, the provision of future information and the security of the establishment and safety of those within it. Thus Segregation Review Boards are not invariably given full disclosure of all security information. Rather, where there is sensitive security information, a verbal gist of it will be given to the Board and the reliability of the information will be discussed."

In the light of the questions raised at the hearing, Ms Hay carried out an informal survey of 22 prison establishments across a geographic spread and across different categories of prisons. The majority of prisons reported that an IMB member attended all, or virtually all, of the 14 days Segregation Review Board meetings. A small number of prisons reported low attendance by the IMB, meaning attendance at fewer than 50% of Boards. The 72 hour Review Boards may see an IMB member present less frequently, although they will always be invited to attend.

"Almost all surveyed establishments" reported that sensitive security information was given verbally to the SRB in a "gisted form". The IMB member attending receives the information in the same fashion and to the same degree as other Board members.

As had already been noted, Ms Hay points out that Rule 79 (3) of the Prison Rules allows IMB members access to the prison records. She continues that "establishments often have arrangements in place to provide sanitised security information only" in respect of security information and reports and security files.

"Sanitised information means that the source of the information is removed but the content and the meaning of the information is unaltered. All staff outside the Security Department are provided only with sanitised information on the basis that the integrity of intelligence gathering in prisons is predicated on confidentiality. However, there will be occasions that (sic) IMB members will have a legitimate need to know the source of the information and may make such a request where he/she feels it is necessary to do so as part of his overall function in scrutinising the segregation process".

Ms Hay answers the third question by making it clear that, save where safety concerns preclude the prisoner's attendance, the prisoner will attend the Review Board and she goes on to say that:

"Only in cases where sensitive security was being discussed would he be excluded for part of the proceedings."

In his third witness statement, the solicitor for the Claimant Daniel Guedalla addresses all three questions. He points out perfectly fairly that the evidence he can submit must be derived from the Claimants, from his firm's experience and from such enquiries as he has been able to make. These enquiries principally consist of communication with 6 current or former members of the IMB, with recent or ongoing experience of the practice at Segregation Review Boards. This experience straddles different kinds of establishments: a local prison, a training prison, high security establishments and in one case a young offenders' institution.

Mr Guedalla suggests the role or practice of the IMB member at such Boards is not to advocate on behalf of the prisoner but to review the paperwork giving the reasons for the decision. It is clear that the IMB members who have discussed the matter with Mr Guedalla well understand the provisions of PSO 1700. The IMB member of a board may be provided with access to the security information reports but they are not permitted to view Covert Human Intelligence Source (CHIS) information. The IMB members from local prisons suggested that they normally would not see the security information, "however if they wished to see it then they would normally be provided with access to most, with the exception of a CHIS and medical records." The IMB members from local prisons also commented that the practice varies from establishment to establishment and that "the PSO guidance could do with tightening to ensure a consistent approach in relation to the level of disclosure that is required and by specifying more clearly the expected standards of treatment that the IMB's role is to monitor".

Mr Guedalla went on to emphasise that in the case of Mr Bourgass and Mr Hussain there was no discussion in front of either of them (on those occasions when they attended boards) of the evidence or intelligence said to support the allegations. Mr Hussain accepted that a member of the IMB was present for the majority but not for all of the meetings of review boards in his case. Mr Hussain suggests:

"it was a different IMB member each time and they just nodded their head and never said anything while he was present; only the governor spoke"

R (King) –v- Secretary of State for Justice 2010 EWHC2522 (Admin)

In the case of King, judgment was handed down on 13 October 2010. The Divisional Court (Pitchford LJ and Maddison J) had to consider the nature of the regime for adjudication of disciplinary charges brought against inmates in prisons and young offender institutions. Before that court, the Secretary of State argued that there was no domestic law right of association for prisoners capable of amounting to a "civil right" within the meaning of limb 1 ("the civil limb") of ECHR Article 6(1). The Secretary of State lost that argument before the Divisional Court. The Court concluded, after a review of European and English authority, that the Claimant prisoner had a civil right, within the meaning of Article 6, to associate with other prisoners, derived from the Young Offender Institution Rules 2000 and/or from common law. In the course of his judgment in paragraph 106, Pitchford LJ accepted that:

"….the extent of the "basic" association which the inmate will be entitled is, subject to the performance of his statutory duty, in the discretion of the Governor of the institution; but, in my view, the existence of that discretion does not remove from association its quality as a personal right. It is a right which is subject to the lawful exercise of discretion by the Governor. There can, it seems to me, be no doubt that a prisoner has a right of access to a court if he asserts the Governor has arbitrarily removed from him any association with those of his fellow inmates with whom he would normally enjoy joint activities. That right of access to the courts exists because association is one of those residual rights which the prisoner retains subject to the lawful exercise of disciplinary or other powers. This, I think, is the distinction between the case of a prisoner and the case of the discretionary recipient of a welfare or other benefit…..[this claimant] says that he had the same basic right of association with his fellow inmates as they enjoyed, subject to the lawful exercise of disciplinary power by the Governor. I accept that within the autonomous meaning afforded to "civil rights" by the European Court a right of association, in the sense I have described it, is a civil right."

The Court went on to decide that the supervisory review in the High Court of disciplinary proceedings before the Governor was, in that case, a sufficient guarantee of the fairness of the proceedings for the purpose of Article 6 (1). I return to that aspect of the decision below.

Although the Secretary of State reserved the right to take the point elsewhere, in argument before me Counsel accepted for the purpose of this hearing that the loss of association derived from segregation affected these Claimants' "civil rights" so as to engage the obligations under the civil limb of Article 6.

Claimants' submissions on law

I turn to the key propositions advanced by the claimants. Mr Southey QC starts from the point conceded for these purposes that segregation engages the civil limb of Article 6. He says that segregation may give rise to violations of Articles 3 or 8 if there is insufficient justification for segregation: see Enea v Italy 74912/01: Stegarescu v Portugal 46194/06 (6 April 2010). The Article 3 threshold is lowered where a person is deprived of liberty see: R (C) v SSHD [2009] QB 657. Article 8 rights are potentially engaged see McFeeley v UK [1981] 3 EHHR 161 and R (Munjaz) v Ashworth Hospital [2006] 2 AC 148.

At the heart of both these cases, he says, there is a dispute as to whether the claimant is properly in segregation, and the effect of the process is that the prison service is compelled to determine whether segregation breaches Articles 3 and/or 8 by reason of their independent obligation under the Human Rights Act 1998. By the nature of the allegations against both claimants, there is a primary need for independent fact finding. This is comparable to the obligations arising on the facts in R (Wright) v Health Secretary [2009] UKHL 3. As in that case, the decision is to be founded on a question whether the alleged misconduct actually took place, and in such circumstances independent fact finding is necessary. This factual background means that the degree to which the process is evaluative is limited. This is a dispute requiring resolution, and therefore more akin to a trial.

Moreover, Mr Southey argues disclosure is key to the challenge mounted by these claimants. How can the prisoner meet allegations, where the intelligence is not revealed to him? There are other options open to the authorities. They can transfer or separate the prisoner. But if they choose to segregate, there are core minimum standards of disclosure for fairness to be maintained. Those obligations might be met by withholding some material from the prisoner, but disclosing that material to lawyers, potentially special advocates. As it is, the process does not allow for sufficient independence or "counter balance" to the role of the governor, particularly in the context where the governor, IMB member and other review board members are only supplied with "gisted" intelligence material. These arrangements conflict with the core minimum standards of disclosure for a trial, for example as analysed by Lord Phillips in his speech in Home Secretary v AF (No.3) [2009] 3 WLR 754 at paragraphs 57 and 59.

In this context he says there is really no meaningful or sufficient procedural safeguard at first instance. The prison service in its various manifestations collects the material on which the decision is founded, interprets that material and presents the interpreted form only, and then through the relevant governor makes the decision on segregation. There is no independence on the part of the decision maker. That model has to be seen in the context of the extreme difficulty on the part of the prisoner in testing the material which has been "gisted", but not "gisted" to him.

Mr Southey tackled head-on the authority of R (Hague) v Deputy Governor of Parkhurst Prison [1992] 1 AC 58. His attack may be taken to be particularly focused on the conclusions of the Divisional Court, set out in the judgment of Gibson LJ at page 82B to 83A. There the court distinguished a decision as to segregation from a decision on disciplinary proceedings. In relation to segregation, the applicant had no right to be heard and nor was there any obligation to provide reasons. In the Court of Appeal, Taylor LJ held that a prisoner had no right to make representations before being segregated or before a period of segregation was extended. The reasoning is set out in his judgment at pages 109H to 110H. The distinction between disciplinary proceedings and a decision on segregation is maintained and for reasons which are expressed as follows:

"Apart from the urgency of decisions under Rule 43, there may well be other public policy grounds for not giving reasons in advance to the prisoner so as to enable him to make representations. Giving reasons would often require unwise disclosure of information. Such disclosure could reveal to prisoners the extent of the governors' knowledge about their activities. It could reveal the source of such information, thereby putting informants at risk. It could cause an immediate escalation of trouble." Page 109H to 110A.

The same line of reasoning is continued at 112B to F.

The House of Lords decided the appeal in Hague on other grounds, in effect that there was no right of action for damages for segregation, or indeed any other decision as to where or how a prisoner is held. There is no "residual liberty" to be protected. The statutory authority:

"for lawful confinement of the prisoner cannot possibly be read as subject to any implied term with respect to compliance with the Prison Rules 1964 and this is fatal to any submission which seeks to make the lawfulness of the imprisonment depend in any sense on such compliance"

See Lord Bridge page 163F.

Lord Jauncey of Tullichettle made similar remarks as follows:

"[The prisoner] is lawfully committed to a prison and while there is subject to the Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had no already lost when initially confined."

Their Lordships concluded that there could therefore be no action for breach of statutory duty for a prisoner who underwent segregation. Although there is no express approval by their Lordships of the remarks from the Divisional Court or the Court of Appeal, it seems to me that the approach of the House of Lords in rejecting Hague's appeal from the decision of the Court of Appeal, on the facts of that case, must lend authority to the remarks of Taylor LJ.

Mr Southey simply says that this authority is no longer good law, and that the law has "moved on". I agree that there is a real tension between the reasoning in Hague and the conclusions of the Divisional Court in King.

Mr Southey then addressed the adequacy of the remedy of judicial review. In circumstances such as those which arise in this case, he said judicial review is an insufficient "stopgap" protection. Indeed the Administrative Court is in no better position to assess the material relied on for the purpose of the decision to segregate than was the review board. He supports this submission by reliance upon the decision of the European Court of Human Rights in Tsfayo v UK (2009) 48 EHRR 18. The Court in Tsfayo distinguished the decision-making process in that case from those in other cases where:

"the issues to be determined required a measure of professional knowledge or experience and the exercise of administrative discretion pursuant to wider policy aims. In contrast…the [decision making body in the instant case] was deciding a simple question of fact, namely whether there was a "good cause" for the applicants delay in making a claim."

The case of these claimants says Mr Southey was fundamentally based on a simple question of fact as to what they had done, requiring a straightforward Article 6 compliant resolution of the dispute in question.

When focusing his more general submissions on the position of the Claimant Bourgass, Mr Southey suggested there was an obligation to adopt some procedure that would enable Mr Bourgass to challenge the factual basis on which his segregation was founded. There was an obligation to provide reasons for the decision, both so as to ensure that the decision maker has addressed the relevant factors and to inform the next review. Suggesting as he did that Hague was no longer good law, Mr Southey submitted that the obligation to give reasons was based both on common law and on the provision of the PSO 1700 as set out on pages 28 and following and summarised in paragraph [38] in this judgment. On the facts of this case, inadequate reasons had been given to satisfy the duty arising from the policy, but also for the purposes of Article 6. The reasons given did not reveal the real reasoning in the case.

In the case of the claimant Hussain, Mr Southey had little to add on the main points. He conceded in the course of oral argument that the position of the second claimant was more difficult. In Hussain's case, there had been an initial investigation, a referral for formal investigation for criminal proceedings. As I have found, there had been for practical purposes an admission of serious assault.

In relation to the supplementary complaint as to telephone access to lawyers, the second claimant says that the regime is materially inferior to that on a normal prison location, with significant restrictions on legal access. Someone in the position of Mr Hussain, facing potential criminal charges as well as mounting a judicial review, is precisely the sort of prisoner who needs ready access to legal advice, as a matter of common law and/or the interpretation of PSO 1700. Mr Southey relies upon a part of the speech of Lord Bingham in R (Daly) v Home Secretary [2001] 2 AC 532 at page 537G to 538A where Lord Bingham said:

"5. Any custodial order inevitably curtails the enjoyment, by the person confined of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both. But the order does not wholly deprive the person confined of all right enjoyed by other citizens. Some rights, perhaps in attenuated or qualified form, survive the making of the order. And it may be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends which justify the curtailment."

Submissions of the Defendant

Having summarised the arguments advanced by the claimants, I turn to consider the submissions for the defendant. Proceeding from the temporary concession that Article 6 rights are engaged, the first submission from Mr Grodzinski is that the decision to segregate does not involve the determination of a dispute between a prisoner and the defendant. The need for a determination of a dispute arises on a claim for judicial review of the decision to segregate, or to continue segregation.

Moreover, Mr Grodzinski submits that even if the decision to segregate, or prolong segregation, was itself the determination of a dispute, the availability of judicial review to scrutinise the decision would mean there is no violation of Article 6. Judicial review is a fair and proper fulfilment of the State's obligations under Article 6. Thus Mr Grodzinski suggests that the key issue to be resolved in these cases is whether the decision to segregate the claimants complies with Article 6, by reason of the availability of judicial review in the High Court to challenge those decisions.

To support this proposition, Mr Grodzinski relies upon the second limb of the decision in King. For these purposes it is necessary to consider the factual background. The claimant in that case was undergoing a sentence of detention at the Young Offender Institution at HMP Portland. He was found guilty by the governor of a disciplinary offence and ordered to be confined in his cell for three days. The complaint was that the Governor of the YOI, or his delegate, was not an independent tribunal within the meaning of Article 6(1).

Once the Divisional Court had concluded that Article 6 rights were engaged, they proceeded in paragraphs 118 to 125 of the judgment of Pitchford LJ, and at paragraph 130 of the judgment of Maddison J, to consider whether supervisory review in the High Court of disciplinary proceedings is a sufficient guarantee of the fairness of the proceedings within the meaning of Article 6(1). For reasons set out in the paragraphs just identified, the Divisional Court concluded firmly that judicial review was a sufficient safeguard and satisfied the obligations under Article 6.

In support of his position Mr Grodzinski makes a number of points of substance. The first turns on the nature of the decision to segregate. Mr Grodzinski emphasises that this is not merely a matter of considering a set of facts and deciding what took place. Although the underlying events are important, the decisions to segregate, here and as a rule, involve on-going expert knowledge of prisons, of the prison population, of the balance of risks derived from the activities of each of these claimants and of the other prisoners affected by them. The approach requires knowledge and expertise as to how a prisoner may effectively be handled, given his overall conduct in the past and predicted conduct in the future. Provided proper safeguards are in place it is manifestly appropriate, says Mr Grodzinski to entrust such a decision to a prison governor initially, and then to segregation and review boards. It would be inappropriate for such a decision to be handed to a tribunal or quasi-court, with no knowledge of those multiple and complicated considerations.

In further support of his position, Mr Grodzinski relies on all of the existing safeguards within the system. Even though this is not a trial process, the safeguards are real. He emphasises the involvement of a wide range of officials, apart from the prison governor. Psychologists, other health care officials, the ACCT case manager, the Chaplain, a segregation officer, and the wing officer will all be involved in recommending or advising as to the outcome. The Independent Monitoring Board members are truly independent, and are capable of raising concerns to the governor in charge, to the regional manager of custodial services and further up the chain if need be. The prisoner is given reasons for his segregation, and was so given in both cases under consideration.

The prisoner can always attend the segregation board and make representations. Hussain was advised by the segregation unit Senior Officer of the importance of attending review boards and he did so. Bourgass was given the opportunity of attending, but declined to do so for much of the relevant period. That was his choice. The system will allow a prisoner to understand the nature of the allegation against him, even if he is not privy to the intelligence on which the allegation is based. If he attends the board he will be able to achieve an appreciation of how his risks are assessed, a process which goes beyond the immediate trigger incident. The governor sitting on a segregation board or review board will not be independent of the prison service, but will be a different governor from the person originally segregating a prisoner.

The Secretary of State submits the nature of the decision being taken to segregate, or continue segregation, is a dynamic one, rather than a fixed response to a fixed finding of facts in relation to a given incident. While acknowledging it is not for a claimant to advise as to a substitute system, where there is a system, alleged to give rise to a breach of convention obligations, Mr Grodzinski asks rhetorically why there has been no attempt even to suggest an alternative system which would comply with Article 6, but would also be practicable.

Turning to the individual claimants, Mr Grodzinski submits that perfectly full reasons were given to Mr Bourgass at the time of his segregation. He knew what brought about his segregation. It was the sequence of his being placed on the "anti-bullying stage number 2" regime, his failure to engage in that regime, his continuing attempts to intimidate other prisoners and then his involvement in what was initially believed to be a fight with another prisoner. When Mr Bourgass was removed from segregation on 22 April 2010, he had had by letter of 20 April a description of the background offence and the basis upon which he was to be moved, but managed on the anti-bullying strategy on a wing. By 30 April, in a letter to his solicitors Mr Bourgass had short reasons for his reasons to segregation. Full reasons were given for every decision thereafter.

It is worth noting that each time segregation is imposed or reviewed a "segregation safety screen" is gone through with the help of a "segregation safety algorithm". This is a document setting out a structured decision-making process intended to ensure that the correct features of the prisoner's case are considered, including: is prisoner is awaiting transfer, has there been self-harm, are there signs of acute mental health difficulty or drug withdrawal and so forth. The algorithm is accompanied by notes amplifying many of the relevant considerations. There are also disclosed to the court day by day notes of the prisoner's progress. The result is that at each segregation board, the participants in the decision are able to see brief day-by-day log entries as to the prisoner's progress. These notes deal, along-side other issues, with legal access, exercise, the mood or attitude of the prisoner, his reaction to the suggestion that he is involved in bullying or was involved in the important assault. Notes also demonstrate that the duty governor visited him regularly, if not every day, certainly on most days when he was on segregation.

The Secretary of State relies on the degree of attention to the prisoner and continued assessment of his position as part and parcel of the process of ongoing decision-making. This is not, says the Secretary of State, a once for all decision on a set of facts related to one incident.

Against that backdrop, Mr Grodzinski emphasises that not only would it be an inappropriate process if the examination of facts of a given incident were brought to a trial-type process, but it would be unlikely to be conclusive. With a prisoner such as Mr Bourgass, differences may arise frequently. Are all disagreements to be brought to a quasi-trial process? If so, how are the implications of any such process to be managed? Insofar as there is factual content to any friction or difference of views, is that to be investigated as if it were an allegation in a trial? If so, how are the consequences to be handled, when that is based on intelligence or even observation by a prison officer? How are the prison authorities to handle the consequences – what Mr Grodzinski terms the "blow-back" - if the source of information is revealed at every stage?

The Secretary of State essentially relies on all the same reasoning in relation to the case of Mr Hussain.

Mr Grodzinski advanced four reasons to support the proposition that Article 6 carries no express or necessarily implied obligation of disclosure of evidence. Fairness, said Mr Grodzinski, depends on the context. He listed his four reasons as follows: firstly, PSO 1700 already requires reasons to be given to the prisoner, and allows the prisoner to attend review board meetings. There is no reason to infer more specific obligations to provide reasons, a question which must always depend on the facts. Secondly, Mr Grodzinski relies on the range of sensitive intelligence or other sensitive material which may be involved in such decisions and which render disclosure "manifestly inappropriate". Here, Mr Grodzinski did rely upon the effect of the decision in Hague. Thirdly, the presence of an Independent Monitoring Board member at the great majority of boards, allied to the access to information which is clearly achievable by IMB members, provides a significant measure of reassurance. Their access includes at least some access to sensitive material. Fourthly, Mr Grodzinski submits that the principles which ordinarily apply to disclosure in court proceedings, in the context of a dispute before a Tribunal, or even in the context of a Control Order, cannot simply be transferred to an administrative body, which will be taking decisions which often do not depend on who is to be believed.

Further, he adds segregation may often arise as a necessary means of protecting the prisoner, and a very different set of considerations arising in that context need to be accommodated by the segregation process.

All these arguments says Mr Grodzinski point away from any common-law obligation to enter into a trial type process or provide "pre-trial" disclosure, as firmly as they operate to displace a direct obligation under Article 6 supporting such obligations. Moreover, the Secretary of State argues that those safeguards come under the over-arching jurisdiction of the court. Judicial review is available to address any procedural or procedural defects or unfairness.

Mr Grodzinski undertook a considerable review of authority as to the appropriateness of judicial review as a safeguard fulfilling the obligations under Article 6. As counsel himself acknowledged, this review covered a variety of different factual and legal contexts dealing with planning law, disciplinary proceedings, medical tribunals, the award or withholding of benefits and so forth. The thrust of these submissions was to suggest that the application of Article 6 maybe relatively "elastic" depending on the context.

I do not intend to follow Mr Grodzinski through his tour of the authorities. Cases such as Bryan v United Kingdom (1995) 21 EHHR page 342; R (Alconbury Developments) v Secretary of State for the Environment (2003) 2AC 295 and Runa Begum v Tower Hamlets LBC (2003) 2AC 430, all make it clear that administrative decisions determinative of civil rights may often properly be made by a tribunal which does not itself possess the necessary independence to satisfy the requirements of Article 6 (1), so long as measures are in place to safeguard the fairness of the proceedings and the decision is subject to ultimate judicial control by a court with jurisdiction to deal with the case. Perhaps the best review of this area of law is to be found in the speech of Lord Hoffmann Runa Begum at paragraphs 51 and 59, which he concludes by observing:

"In my opinion the question is whether, consistently with the rule of law and constitutional propriety, the relevant decision-making powers may be entrusted to administrators. If so, it does not matter that there are many or few occasions on which they need to make findings of fact."

The other side of the coin is to be found in the slightly more recent case of Tsfayo v United Kingdom (2009) 48 EHRR 18, where the European Court of Human Rights distinguished the nature of the exercise to be found in that case in the following well known terms:

"The court considers that the decision-making process in the present case was significantly different. In Bryan, Runa Begum and the other cases cited…. above, the issues to be determined required a measure of professional knowledge or experience and the exercise of an administrative discretion pursuant to wider policy aims. In contrast, in the instant case, the [Housing Benefit Review Board] was deciding a simple question of fact, namely whether there was 'good cause' for the applicant's delay in making a claim….. No specialist expertise was required to determine this issue, which is under the new system, determined by a non-specialist tribunal. Nor, unlike the cases referred to, can the factual findings in the present case be said to be merely incidental to the reaching of broader judgements of policy or expediency which was for the democratically accountable authority to take."

These observations must of course be read in the factual context of the case of Tsfayo, where the relevant board at the time consisted of representatives of the local authority who were liable to pay housing benefit if it was payable and avoid the cost if it was not. It was thus the combination of a direct interest in the outcome of the decision, the consequential lack of independence, and decision being an entirely factual investigation with a straightforward answer one way or the other, which drove the conclusion. Mr Grodzinski relied in particular upon Regina (A) v Croydon LBC [2009] PTSR 1011, on the judgment of Ward LJ and in particular the passages at paragraphs 63 – 83. Two points perhaps are relied on here. Firstly that developed by Ward LJ at paragraph 71:

"A lack of independence and impartiality arising from no more than the organisational structure of the employment [cannot realistically be said to] infect the social workers' decisions so as to be incapable of cure by judicial review."

The second key conclusion is the observation, that confusion would be caused by hiving-off for some special treatment a factual issue which formed part of a decision requiring professional expertise or judgement. The court said that would not work.