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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Conlon, Re Application for Judicial Review [2001] NICA 49 (30 November 2001)
URL: http://www.bailii.org/nie/cases/NICA/2001/49.html
Cite as: [2001] NICA 49
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CARSWELL LCJ
Introduction
The appellant Charles Conlon was an inmate of HM Prison, Maghaberry from his admission in October 1998 until his release in July 2001. He was an extremely violent and obstructive prisoner, whose behaviour must have thrown an enormous strain on the authorities entrusted with the task of managing the prison and the staff who had to control him. He spent a very large proportion of his time in Maghaberry in segregated accommodation, subject to substantial restrictions on his freedom of activity and movement. In July 2000 he commenced an application for judicial review of the decisions to keep him in these conditions, in which he made a variety of complaints about his treatment. The application was dismissed by Kerr J in a written decision given on 4 May 2001 and the appellant appealed to this court against that decision.
The Factual Background
The appellant was admitted to Maghaberry on 2 October 1998 as a remand prisoner. On 4 December 1998 he was moved to the close supervision wing. In that wing he was locked in his cell for most of each day, but was free to associate with other prisoners when not locked up. On 4 March 1999, following his being found guilty of threatening a prison officer, he was removed to the Punishment and Segregation Unit (PSU) under Rule 32 of the Prison and Young Offenders Centre Rules (Northern Ireland) (the Prison Rules), which provides:
"32.-(1) Where it is necessary for the maintenance of good order or discipline, or in his own interests that the association permitted to a prisoner should be restricted, either generally or for particular purposes, the governor may arrange for the restriction of his association.
(2) A prisoner's association under this rule may not be restricted under this rule for a period of more than 48 hours without the agreement of a member of the board of visitors or of the Secretary of State.
(3) An extension of the period of restriction under paragraph (2) shall be for a period not exceeding one month, but may be renewed for further periods each not exceeding one month.
(4) The governor may arrange at his discretion for such a prisoner as aforesaid to resume full or increased association with other prisoners and shall do so if in any case the medical officer so advises on medical grounds.
(5) Rule 55(1) shall not apply to a prisoner who is subject to restriction of association under this rule but such a prisoner shall be entitled to one hour of exercise each day which shall be taken in open air, weather permitting."
He remained in the PSU until 31 August 1999, when he returned to the close supervision wing.
In November 1998 and June 1999 the appellant received two sentences of imprisonment. When he had completed the time to be served for these he remained in prison on remand. On 19 October 1999 he was sentenced to terms of imprisonment totalling an effective period of two and a half years. On 21 November 1999 he was again sent to the PSU under Rule 32. The reason for the decision to remove him from association appears from paragraph 5 of Mr Mogg's affidavit sworn on 26 October 2000:
"The initial decision dated 21 November 1999 to restrict the Applicant's association was taken as a result of a spate of bad behaviour by the Applicant involving him being charged with 10 offences against Prison discipline between 28 October and 21 November 1999 … The Applicant … was found guilty of threatening staff and their families and he was viewed by prison staff as having a threatening attitude towards them. It was considered that the Applicant because of his attitude and behaviour was a disruptive influence within the ordinary regime and that this was undermining discipline and control by officers."
On 22 November 1999 two members of the prison board of visitors authorised an extension of the period of restriction for a period of 28 days from that date.
Between that time and the appellant's release members of the board of visitors authorised the extension of his removal from association under Rule 32 at intervals of a month or slightly less. The governor on the expiry of each period of removal from association referred the question of the extension of the appellant's segregation to the board for further consideration. The board reviewed it at each of their monthly meetings in the light of up-to-date information from the governor about the appellant's conduct. Each month two members of the board sought to speak to the appellant before the extension of his segregation was considered and authorised. The records of visits show that on the first eight of these occasions the appellant refused to see the visitors or speak to them. On 30 June 2000 he did see them, but accused them of having made up their minds in advance and terminated the interview. In July 2000 the visitors had a discussion with him about solitary confinement. He made no response to attempts to speak to him in August 2000, then entered into discussion in September. On 16 October 2000 the visitors had a long discussion with the appellant, which was much more positive in its terms, as is set out in paragraph 16 of the affidavit sworn by Vilma Patterson:
"Both I and my fellow board member, John Millar, spoke to the Applicant for a long period. We discussed his continuing detention with him and stressed that we wished to see him back in a normal location. I told him that staff would have to have confidence in him in order to have him back in the house. I told him that currently confidence was not there and that in my opinion it would be detrimental to him to return to his house if the house was not ready for him. I stressed that it was clearly best for him to return to a normal environment. The Applicant agreed. The Applicant mentioned his current judicial review to us and expressed hope that this would resolve his situation. Both I and my fellow board member were encouraged by his commitment to the current education programme that he is currently undergoing and from which he seems to gain some benefit."
Voluminous material recording the appellant's behaviour while in the PSU was placed before us, which fully justify Governor Mogg's description of him as "a dangerous and unpredictable prisoner." Mr Mogg also deposed that he had been charged on some 65 occasions up to the date of swearing his affidavit on 26 October 2000 with offences against prison discipline, and was found guilty on all but two of these adjudications. By December 2000 the number of adjudications had increased to 70. In consequence the appellant lost a considerable amount of remission and was regularly deprived for periods of time of privileges to which he would otherwise have been entitled.
The appellant committed major assaults on staff members on five occasions in the course of the year 2000, some of which resulted in serious injury. In November 2000 the assault was so serious that he was prosecuted and subsequently convicted of assault on prison officers, for which he was sentenced to a further six months' imprisonment. Because of the danger which he posed to prison staff the governor gave instructions that he was to be closely escorted by members of the standby search team every time he left his cell in the PSU. On occasions when he offered violent resistance to officers he had to be restrained by prison staff trained in the use of approved control and restraint techniques. The appellant claimed that he had been hurt in the course of such restraint, which he alleged was done in such a way as deliberately to injure him.
When a prisoner is housed in the PSU on Rule 32 he is entitled to all the ordinary privileges available to prisoners, except association with others. Some or all of these privileges may, however, be removed by the governor for specified periods if the prisoner is found guilty on adjudication of offences against prison discipline. The appellant lost many of his privileges for considerable periods in consequence of being found guilty of the many infractions of discipline committed by him.
On 20 November 2000 a new regime of progressive levels of privilege was introduced in the prison, designed to reward good behaviour and create a disincentive to bad behaviour on the part of the prisoners. The lowest level of the regime is termed the basic level and more liberal privileges are allowed on the standard and enhanced levels. The process is based on regular written reports containing the prison officers' assessment of the prisoner's behaviour. If these are satisfactory a prisoner may progress from basic level through the higher grades. The privileges afforded on the basic level, on which the appellant was placed because of his unfavourable behaviour reports, consisted of three privilege visits per month, in addition to the statutory visit; the use of a radio cassette or hi-fi player; the opportunity to spend up to £20.00 per week in the prison shop; the use of up to five phone cards per week; the consumption of up to 62.5 grams of tobacco or 60 cigarettes per week; entitlement to a daily newspaper and access to the prison library and to education facilities; and the opportunity to engage in cell crafts and hobbies.
The introduction of the new regime was the occasion of one serious incident involving the appellant. Under the basic level he was no longer entitled to have a television set in his cell. On the day when the regime was introduced prison officers removed the appellant's set while he was out of his cell, hoping thereby to avoid a confrontation with him. When he discovered that the set had gone, the appellant attacked two prison officers and inflicted serious injuries on them. He was removed by the use of control and restraint techniques and was thereafter housed in a special cell at the end of the wing with double doors and limited furnishings. The cell was twelve feet by seven feet in size. It had a window some four feet by three feet, which let in natural light but, like all cells in the PSU, was fitted with opaque glass for security reasons. The appellant was offered an exercise period of one hour each day. He could also use the shower and mop or clean out his cell. Domestic and professional visits were carried out in an area adjacent to the PSU.
The Issues
The appellant's Order 53 statement was extensively amended on three occasions and now contains multifarious allegations of breaches of the Prison Rules and the European Convention on Human Rights (the Convention). As presented on appeal before us, the argument advanced on behalf of the appellant may be encapsulated as follows:
1. The continued segregation of the appellant under Rule 32 was unlawful, as being in breach of the Prison Rules.
2. The decisions to keep him in continued segregation were unfair and unlawful, because no sufficient reasons were given for them and the appellant had no sufficient opportunity to make representations about them.
3. His continued segregation, taken together with the conditions in which he was kept, constituted inhuman and degrading treatment, in breach of Article 3 of the Convention, and also involved breaches of Articles 6, 8 and 14.
4. His continued segregation was unreasonable in the Wednesbury sense.
5. Several features of the conditions in which he was held, while contributing to the amalgam of conditions alleged to constitute inhuman and degrading treatment, were also in breach of specific provisions of the Prison Rules.
6. The appellant, who is of African-American descent on his father's side, complained that prison officers made opprobrious racist remarks to him and that the prison authorities failed to investigate his complaints properly.
These arguments overlap to some extent and we shall discuss them in a somewhat different order.
Removal from association
At the heart of this appeal is the question how the prison authorities could control the appellant, maintaining necessary prison discipline and ensuring the physical safety of prison staff, and whether they had any feasible alternative to his continued removal from association under Rule 32. Mr Treacy QC for the appellant contended that solitary confinement for eighteen months to the time of the appeal was intolerable and that the prison authorities were bound to find some alternative. He was, however, unable to suggest any other means whereby they could manage this exceptionally intractable, unpredictable and dangerous prisoner.
For our part we agree with the judge that the prolonged removal of a prisoner from association must be a matter of concern and that it is incumbent on the prison authorities to make all reasonable efforts to find another means of handling the prisoner which does not involve keeping him indefinitely in segregated conditions. In ordering his continued removal from association the visitors were acting within the four corners of their authority conferred by Rule 32. Their decisions would, nevertheless, be open to attack if they were unreasonable in the Wednesbury sense. In order to come within that extremely exacting standard, it must be established that the decision called in question is, in the words of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410,
"so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
It is in our view impossible to regard the decisions of the visitors as unreasonable in that sense. We agree with the conclusion expressed by the judge on this issue at page 30 of his judgment:
"It is clear, however, that the Board of Visitors, presented with the monitoring records that I have summarised above, had little alternative but to renew his period of removal from association. Senior prison officers consistently warned that staff would be at serious risk if the applicant were returned to the normal prison regime. For the most part, the applicant was unwilling to meet with the Board of Visitors. In the face of consistent reports about his conduct towards prison staff and other prisoners, the conclusion reached by successive Boards of Visitors that the applicant should remain segregated from other prisoners was virtually inevitable."
The visitors' decisions were also attacked on the ground that no reasons were given for them and the appellant was not given the opportunity to make any representations before they were made. The judge considered the authorities on this point, consisting of the decisions at first instance of Williams v Home Office [1981] 1 All ER 1211, Re Maguire's Application [1993] 9 NIJB 60 and Re Taggart's Application (1997, unreported). He expressed his conclusion as follows at pages 23-4 of his judgment:
"I consider that a prisoner who has been removed from association is entitled to be informed of the reasons that this action has been taken, unless it is so obvious why this has happened that the information is superfluous. Of course, it will not be necessary in every case that the prisoner be informed before he is removed. Frequently, that will not be feasible. But it now appears to me that fairness requires that a prisoner who loses the opportunity to associate with other prisoners must normally be informed of the reason for that, in the same way that those whose categorisation is changed are entitled to be told of the reasons that this has occurred – see R v Secretary of State for the Home Department ex parte Duggan (1994) 3 All ER 277 and Re McCorley [2000] NIJB 121."
He based this conclusion largely on the impact which segregation from other inmates has upon the life of a prisoner, carrying the risk of psychological damage, as material published in recent years highlights. He therefore expressed the view at pages 25-6 of his judgment:
"Clearly, therefore, the removal of a prisoner from association should not be undertaken lightly and certainly not without giving him the opportunity of making representations upon it, although, as I have said above, it is not invariably necessary that the opportunity to make representations be afforded before the removal takes place. The prison authorities must ensure that a prisoner removed from association is aware of the reasons for his removal at the earliest possible opportunity. As I observe below, segregation from other prisoners is a measure of last resort. It would be wholly inconsistent with that view to sanction the withholding of information which reveals the reasons that the applicant was removed from association."
We are in general agreement with the proposition that a prisoner should where feasible be informed of the reasons for his removal from association, but we do not consider that a hard and fast rule should be laid down, for the circumstances may be infinitely variable. We would accept that the conclusion reached by Tudor Evans J in Williams v Home Office can no longer be sustained. It does not follow that because a prisoner does not have to be guilty of an offence before he is removed from association, he has no right to be heard. The trend of recent decisions in this area of the law has been to increase the instances in which reasons have to be furnished and an opportunity given to make representations.
The generalised requirements of fairness articulated by Lord Mustill in R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at 560 will, however, apply to a decision to remove him. It is important to bear in mind the essentially flexible nature of the principles set out in that case. A decision to remove a prisoner from association may have to be taken and put into effect quickly. It may not be appropriate to enter into a debate about the matter before removing him. In some cases it may not be possible to disclose to the prisoner the information upon which the decision is based, in which event any uninformed representations which he may make may be of little value. For these reasons we would not go so far as to say, as the judge did, that a prisoner must always be informed of the reasons for his removal from association at the earliest opportunity. We would not go further than to propound a general rule that the governor should at an early stage, but not necessarily before the removal of a prisoner from association, give him where possible and where necessary sufficient reasons for taking that course and afford him the opportunity to make representations about its justification. Whether this will apply on the extension of a period of removal will depend on the circumstances, and comprehensive rules cannot be laid down. Nor do we think that there should be any hard and fast requirement about the form in which the reasons are given to the prisoner. As the judge observed, the important thing is that he is given sufficient information to permit him to understand why he was removed from association and why the visitors accept that his removal should continue. Whether this can be given satisfactorily by oral explanation or whether some documentary material is required depends on the facts of the case, although it seems likely that in most cases the gist of the prison authorities' reasons for wishing to continue the removal can be given in interview.
In many, if not most, cases the prisoner will be fully aware of the reasons for his removal from association, although he may still require to be given an opportunity to make representations, depending on the facts of the case. In the present case the appellant cannot have been unaware of the reasons why he was removed from association on 21 November 1999. He was, however, given formal notification that day of the reasons in Form R32, which he refused to sign. The visitors asked the next day if he would see them, but he refused. In these circumstances we consider that a proper standard of fairness was observed. For the next seven months the appellant maintained his refusal to speak to the visitors, then when he did so he was made fully aware of the reasons for his continued removal from association. We agree with the observation of the judge at page 27 of his judgment that the appellant could expect no more by way of information. He has accordingly failed to make out this ground of appeal.
Conditions of detention
The appellant made a number of discrete complaints about the conditions of his detention in the PSU, some of which he alleged constituted breaches of the Prison Rules and some breaches of the Convention. In respect of others he made the case that the decisions to institute or maintain particular features were unlawful on other grounds on which he was entitled to obtain judicial review.
He claimed in his statement of case that his continued detention in the PSU was in breach of Rules 2, 51, 54, 55, 65, 66, 67, 68 and 81 of the Prison rules. We do not find it necessary to recite these provisions or to set out the appellant's complaints about them in detail. It is sufficient to say that we are satisfied that in general the appellant has throughout his period in the PSU received the normal privileges and been given the normal facilities available to all prisoners, with the exception of association with other prisoners. As the result of his many adjudications for infractions of prison discipline he has been deprived of particular privileges for specified periods by way of punishment, but this was done in accordance with the Prison Rules and cannot be the subject of complaint in these proceedings. It does appear that for short periods the appellant may not have had such matters as the prescribed exercise time or normal hygiene facilities, but when this occurred it was the consequence of disruption caused by his own misconduct. We are satisfied that the prison authorities have made reasonable efforts to afford to the appellant all proper facilities and that they have not been in breach of the Prison Rules.
Removal of television set
The appellant complains of the removal of the television set from his cell. We have already adverted to the circumstances in which this took place. He did not have any substantive right under the Prison Rules to keep a television set, and the prison authorities were entitled to institute a regime under which prisoners on the basic level would not have them. We agree with the conclusion of the judge expressed at pages 31-2 of his judgment that the appellant did not have a legitimate expectation to retain his television set on the change of regime.
Showering arrangements
The appellant claims that the showering arrangements were such as to involve a breach of Article 8 of the Convention, on the ground that he did not receive respect for his private life. It was considered necessary because of his tendency to violence to keep him under observation at all times when out of the cell, including when showering, but the glass panel through which he was observed was opaque. We regard this expedient as quite reasonable in the circumstances and do not consider that it constituted a breach of Article 8.
Medical examinations
The appellant averred that he was unable to discuss his health with a doctor in confidence, because on medical examinations the cell door was open and prison staff could see and hear everything. Governor Mogg stated at paragraph 3 of his third affidavit:
"The Applicant can request to see a doctor at any time and if such a request is made arrangements will be made for a doctor to consult with him. Depending on the doctor's preferences, the Applicant may be seen by him in his cell with the door closed over but not locked. On these occasions staff will observe proceedings through the door observation slot. Alternatively the doctor may stand at the door of the cell and conduct his consultation from that position. In all cases prison staff will be close-by outside the cell to ensure that if an emergency situation arises they can respond quickly. The Applicant's privacy is respected so far as possible consistent with the needs of security."
We do not consider that the appellant's complaint discloses any breach of the Prison Rules. In so far as it might be suggested that it constituted a breach of Article 8(1) of the Convention, we regard the precautions taken by the prison authorities as justified under Article 8(2).
Dental and optical care
The appellant also complained that he had not received dental or optical care when he requested it. Governor Mogg averred that steps had been taken to provide this care. If there was a failure for any period to respond to the requests, we do not consider that it gave rise to any breach of the Prison Rules or the Convention, nor was it such as to attract judicial review.
Legal visits
The appellant claimed that the arrangements for legal visits were unsatisfactory, in that he was under observation by prison officers and the glass partition was so thin that the officers could hear what was said. We were informed that the arrangements were altered and improved before the hearing before Kerr J, and the judge stated that it was acknowledged that the previous ones were not sufficient. He declined to make a declaration, on the ground that "the issue of a declaration in relation to arrangements which have been abandoned and which will not be replicated would achieve nothing." The appellant's counsel submitted that he was in error in this decision and that we should now make a declaration on this issue. It was a matter for the judge to determine in his discretion whether to make a declaration. We do not consider that he applied any incorrect principle. No clarification of the law or vindication of principle was required and we agree with his conclusion that nothing would be achieved by granting a declaration. We therefore do not see any ground for overruling his exercise of his discretion.
Article 3 of the Convention
The major part of the argument on behalf of the appellant was directed towards establishing that his continued removal from association in the PSU was in breach of Article 3 of the Convention, which provides:
"No one shall be subjected to torture or inhuman or degrading treatment or punishment."
Mr Treacy submitted that it was either inhuman or degrading or both and that since Article 3 is absolute in its terms no qualifications of the duty could be entertained.
We are satisfied, first, that the prison authorities did not intend to humiliate or debase the appellant, any more than they did in 33394/96 Price v United Kingdom (2001, unreported). This, as the Court observed at paragraph 24 of its judgment in that case, is one of the factors which it will take into account, although the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3: cf Peers v Greece (2001, unreported).
The Court has not adopted any comprehensive definition of inhuman or degrading treatment. The assessment of the level of severity of treatment required to come within the term is relative, and depends on factors which include the duration of the treatment, its physical or mental effects and the age, vulnerability and state of health of the victim: Ireland v United Kingdom (1978) 2 EHRR 25, para 162. The conditions in which a person is held may violate Article 3. It has been stated that although solitary confinement does not in itself constitute inhuman or degrading treatment, it is capable in some circumstances of violating Article 3, depending on its stringency and duration and the effect on the prisoner: see the decision of the Commission in Ensslin, Baader and Raspe v Federal Republic of Germany (1978) 14 DR 64 and those cases referred to at paragraph 61 of the Commission's decision in 8463/78 Krocher and Moller v Switzerland (1982) 34 DR 25 and paragraph 117 of its decision in 10448/83 Dhoest v Belgium (1988) 55 DR 5.
In Dhoest v Belgium the applicant, who was of psychopathic personality and made constant attempts to escape, was confined after his conviction for murder in the secure part of a mental hospital, but had fairly free association with other inmates. The Commission expressed the view at paragraphs 117-8 of its decision that in relation to removal from association with other prisoners for security, disciplinary or protective reasons, it –
"would not normally consider that this form of segregation from the prison community amounts to inhuman treatment or punishment … In making an assessment in a given case, regard must be had to the surrounding circumstances including the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned."
The Commission repeated this expression of opinion in 20560/92 Koskinen v Finland.
In Krocher and Muller v Switzerland the applicants, who were alleged to be highly dangerous terrorists, were kept in segregated conditions which, at least for part of the time, were substantially more harsh than those of the appellant in the present case. In reaching its conclusion that those conditions did not constitute a violation of Article 3, the Commission took into account, as one of the material factors, the "legitimate requirements of security" (paragraph 72).
The learned judge held that in holding the appellant in the PSU the prison authorities did not in all the circumstances violate Article 3 of the Convention. He pointed out that although he claimed that those conditions adversely affected his health he did not produce any medical evidence to substantiate his claim. Mr Treacy criticised his rejection of this claim, relying on the uncontradicted averment of the appellant in paragraph 11 of his first affidavit that he was suffering "significant mental anguish and frustration as a result of the conditions" and in paragraph 19 of his second affidavit that the conditions were detrimental to his mental health and that his communication skills had deteriorated. We consider that the judge was justified in reaching the conclusion that the appellant had not established that he was suffering from significant mental anguish or frustration. The judge was not obliged, nor are we, to accept any averment at face value and where it is one which one would expect to find supported by medical evidence if there is any substance in it a court is justified in declining to find that it has been substantiated. We have taken into account all the circumstances of the appellant's detention in the PSU, including all the discrete complaints which we considered earlier in this judgment. Having done so, we find ourselves in agreement with the judge's conclusion that the appellant has not established a breach of Article 3 of the Convention.
Racist Abuse and Racial Discrimination
The final issue centred round the appellant's complaints, first, that the prison authorities had discriminated against him in their treatment of him and, secondly, that he had been the victim of racist abuse on the part of prison officers. He averred that he had constantly been called opprobrious names of a racist nature and that the prison authorities had not taken effective steps to investigate the matter when he complained to them. Governor Mogg states in paragraph 28 of his second affidavit that the appellant made complaints in July 1999 and October 1999, that on both occasions the allegations were inquired into but found to have no substance. The appellant had an interview with Governor Cromie, but this dealt only with the taking down of a poster which he had put up in his cell. He complained to the Prison Service about discrimination in his treatment, alleging that as no white prisoners had been segregated under Rule 32 for such a long period this was due to racial discrimination. He asked for an investigation by a "person of colour" and stated that he would detail his complaint to the investigating officer, as he did not feel able to express his complaint fully and properly in writing.
It is stated in Lester & Pannick, Human Rights Law and Practice, para 4.3.7 that racial discrimination may in some circumstances be considered degrading treatment. The limits of this proposition are not clearly defined, but it seems to us that it would require a gross degree of sustained humiliation before opprobrious racist insults could be classed as degrading treatment.
It is well established in the case-law of the European Court of Human Rights that there is an ancillary duty on a State to conduct an official investigation where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of police or similar agents of the State. In 26772/95 Labita v Italy the Court stated at paragraph 131 of its decision:
"131. The Court considers that where an individual makes a credible assertion that he has suffered treatment infringing Article 3 at the hands of the police or other similar agents of the State, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in … [the] Convention', requires by implication that there should be an effective official investigation. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible (see, in relation to Article 2 of the Convention, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161; the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324, § 86; and the Yaa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 98). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance (see paragraph 119 above), be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity …"
It was submitted on behalf of the appellant that the investigation into his complaints had been insufficiently thorough and that this constituted a breach of Article 3. The existence of the duty to investigate is predicated upon the treatment complained of constituting an infringement of Article 3 and upon the assertion being credible. We do not consider that the abuse complained of, if substantiated, would constitute such an infringement, and accordingly, if the authorities had failed to investigate it properly, that failure would not be a violation of Article 3. Moreover, Governor Mogg did institute investigations into the complaints of racist abuse, which he said were shown to be without foundation. On the evidence before us we could not say that those investigations were deficient, and if, contrary to our view, there was a duty under Article 3 to investigate the complaints, it has been discharged.
We can dismiss briefly the submission that the prison authorities were in breach of Article 14 of the Convention by discriminating against him in their treatment of him. We are satisfied on the evidence that the lengthy removal of the appellant from association was due to the need to control him, protect staff from attack and maintain good order and discipline in the prison. There is not in our opinion any substance in the suggestion that the prison authorities treated the appellant any differently from the way in which they treated or would have treated prisoners of other races who behaved in the same fashion.
For the reasons which we have set out in this judgment, we consider that the appellant has not made out any of the grounds of appeal advanced by him and the appeal will accordingly be dismissed.
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND