Hassan v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 27 May 2011 |
| Neutral Citation | [2011] EWHC 1359 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 May 2011 |
| Docket Number | Case No: CO/5710/2010,CO/5710/2010 |
[2011] EWHC 1359 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Ouseley
Case No: CO/5710/2010
Miss F Williams (instructed by The Howard League for Penal Reform) for the Claimant
Miss S Fatima (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 6 May 2011
The Claimant, a serving prisoner who at the relevant time was an inmate of HMP Full Sutton, was segregated there from 18 February to 12 April 2010 in circumstances which he says made his segregation unlawful. He says that there was no justification for it under the Prison Rules and Prison Service Order 1700 on Segregation, at least after 10 March 2010. Thereafter his Article 8 ECHR and indeed Article 3 rights were breached. He also contends that from the outset procedural safeguards, including those designed to protect inmates with mental health problems, were not applied. The safeguards, it was said, were integral to any segregation being lawful under the Prison Rules and Prison Service Order and, without their observance, segregation from the outset was a breach of Articles 8 and 3.
Legislative and guidance framework
The Prison Rules 1999 S.I. No 1999/728 were made under the Prison Act 1952. Prison Rule 45 provides:
"(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."
The Claimant's advisers thought at one time, understandably to a degree, that segregation had been ordered under a different Prison Rule, 53, pending inquiry into or determination of a disciplinary charge, but the Claimant accepted that in fact that provision had not been used.
Prison Service Orders contain general guidance as well as mandatory requirements. The Orders have the legal effect which policy guidance generally has in public law. Prison Service Order, PSO, 1700 provides supplementary policy guidance on the use of segregation.
PSO 1700 was fully reviewed in 2006/7 following reports which:
"highlighted [that] the number of self inflicted deaths within segregated environments was disproportionate to that of the general population…Segregation should be used only as a last resort whilst maintaining a balance to ensure it remains an option for disrupted prisoners, this does include prisoners on an open [suicide and self harm watch plan] but only when they are such a risk to others that no other suitable location is appropriate and where all other options have been tried or are considered inappropriate. It is expected that segregation staff focus on helping prisoners manage their behaviour and problems rather than simply on punishment. It's desirable that there is greater interaction between staff and prisoners which in turn will alert staff to any concerns on mental health issues and/or risk of self harm, as well as between segregation and wing staff which will assist planning for the prisoners return to normal location…Positive regimes and activities are encouraged as this will act as a diversion to the boredom and loneliness of segregation".
PSO 1700 contains many other references to research that has been conducted into the mental health of prisoners held in solitary confinement and the negative effect which that can have. It is intended to make prison and health staff aware of the impact of segregation and of the importance of safeguarding and promoting the mental health of prisoners held in segregation.
PSO 1700 sets out the purpose and reasons for segregation:
" Outcome: Prisoners are only segregated for reasons of Good Order or Discipline when there are reasonable grounds for believing that the prisoner's behaviour is likely to be so disruptive or cause disruption that keeping the prisoner on ordinary location is unsafe.
• The decision to segregate a prisoner is reasonable and appropriate. See example occasions where segregation might be appropriate.
• The competent operational manager/Duty Director considering or authorising segregation assesses whether the situation could be better addressed by adopting alternative arrangements such as transfer to another wing, closer supervision on ordinary location, transfer to another establishment etc.
• Segregation under Rule 45 (YOI Rule 49) GOoD is for the shortest period of time consistent with the reason for separation in the first place."
The level of restrictions must be:
"no more than are necessary to protect the prisoner concerned or to maintain the good order or discipline of the establishment."
The regime is to be as follows:
"The regime for segregated prisoners (under Prison Rule 45 YOI 49) should be as full as possible and only those activities that involve associating with mainstream prisoners should be curtailed. In-cell education or work that could be done in cell (e.g. packing) should be encouraged. Access to activities such as domestic visits, legal visits, use of the telephone, canteen, exercise and shows should be comparable to those for a prisoner held on normal location. Certain regime elements, for example, TV, radio/CD player, association within the segregation unit, PE/gym access could be used as incentives; rewards for prisoners that comply with the targets set by the Segregation Review Boards."
On initial entry into a segregation unit a registered nurse must complete what is called a "Health Algorithm" as part of completing the "Initial Segregation Health Screen". The health algorithm is a flowchart of questions designed to lead to a conclusion by the nurse on whether there are health care reasons why a person should not be segregated or whether he requires health care intervention. PSO 1700 requires a doctor to visit each prisoner in segregation as often as their individual health needs dictate and at least every three days. There has to be an assessment by a registered nurse or health care officer on all other days which means that a member of the health care staff has to visit the prisoner on a daily basis and assess his physical, emotional and mental wellbeing and consider whether there are any apparent clinical reasons to advise against continuation of segregation.
A daily history sheet has to be completed and there are detailed requirements as to what that sheet should include. It is to be used to record any significant events or observations and the designated officer should make at least 3 daily entries as well as recording any significant discussions between staff and the prisoner and visits to the prisoner. All prisoners in the segregation unit must be observed according to PSO 1700 by an officer at a frequency relevant to the individual circumstances. The segregation officer should engage in dialogue where practical with the prisoner when making observations.
A decision to continue segregation under Prison Rule 45 must be taken by the Segregation Review Board; this Board must have regard to the individual circumstances of the prisoner and aim to return him to a normal location as soon as it is practicable to do so. His safety whilst in segregation is of paramount importance according to PSO 1700.
The initial Segregation Review Board has to be held within the first 72 hours of a prisoner being placed in segregation and subsequent review boards have to be held at least every 14 days. PSO 1700 provides for the composition of such a Board. It should include a Chairman, a health care representative, the Segregation Officer, the Wing or Unit Officer, Chaplain, Psychologist, and for at least part of the Board, the prisoner himself. It is not mandatory that a member of the Independent Monitoring Board attend the Review Board but it is highly desirable that one should do so. Those attending the Boards should, where it is safe to do so, offer the prisoner an opportunity for private interview between reviews to determine whether there is anything they can contribute to his care or management. This includes in particular the member of the Independent Monitoring Board and the Chaplaincy.
PSO 1700 provides for what the Board should consider. It needs to look at the initial reason for segregation since that is an important element of defining what behaviour or attitude needs to be addressed before the prisoner may return to normal accommodation. The prisoner should have been set certain behaviour or attitude targets at the previous review in order to start to work towards normal accommodation. That should be discussed. The Review Board needs to consider any concerns that have come to light about how the prisoner is coping with segregation, particularly because of mental health and self harm concerns. PSO 1700 highlights that a person's mental health "is very...
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R (1) Ben King v Secretary of State for Justice and R (2) Kamel Bourgass and (3) Tanvir Hussain (Respondent Appellants) Secretary of State for Justice
...periods – about six months in the case of Bourgass (second period alone) and about six months in the case of Hussain. 52 In Hassan v Secretary of State for Justice [2011] EWHC 1359 (Admin), Ouseley J held that a period of segregation in HMP Full Sutton for some seven weeks "did not interfer......