Imran Shahid V. Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2011] CSOH 192 |
| Date | 18 November 2011 |
| Docket Number | P1406/09 |
| Court | Court of Session |
| Published date | 18 November 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 192 | |
| P1406/09 | OPINION OF LORD MALCOLM in the cause IMRAN SHAHID Petitioner; against SCOTTISH MINISTERS Respondents: for judicial review of decisions regarding the petitioner's segregation _______________ |
Petitioner: Collins, Q.C.; Balfour + Manson LLP for Taylor & Kelly, Solicitors, Coatbridge
Respondents: Ross, Advocate: Scottish Government Legal Directorate
18 November 2011
[1] In November 2006 the petitioner, along with his brother and another, was convicted of the racially motivated murder of Kriss Donald. The brutal and sadistic nature of the crime, carried out on a 15 year old boy, raised strong feelings at the time and ever since. The trial judge described the petitioner as "a thug and a bully" and "the leader of this wicked expedition". On 10 October 2005, whilst on remand at HMP Barlinne, he was removed from general association with other prisoners ("segregated"). He was thereafter continuously segregated at HMP Barlinnie until 18 September 2006, when he was transferred to HMP Edinburgh to stand trial. Following this transfer, and for the duration of the trial, the petitioner was accommodated in association with other prisoners ("mainstream"). After conviction on 8 November 2006 he was sentenced to life imprisonment with a punishment part of 25 years. The following day he was returned to HMP Barlinnie and again placed in segregation. The petitioner was then continuously segregated in HMP Barlinnie and other prisons until 13 August 2010 when he was returned to the mainstream prison population.
[2] This application for judicial review concerns the decisions taken to segregate the petitioner during his imprisonment. The Scottish Ministers (the respondents) are responsible for the general superintendence of prisons and for the rules regarding the regulation and management of prisons. They appoint the governors and other officers of prisons required by the Prisons (Scotland) Act 1989 and are liable for any wrongful acts of those governors and other officials. The petition was served upon other parties including the Lord Advocate, the Advocate General for Scotland, the Scottish Prison Service (SPS) and the governors of HMP Prisons at Barlinnie, Perth, Shotts and Glenochil. Only the Scottish Ministers have entered appearance.
[3] At the outset it is appropriate to summarise the grounds of challenge and the respondents' responses to them. The petitioner has three complaints:
(i) That his segregation was, for substantial periods, illegal because of failures by the respondents to comply with time limits in the relevant statutory provisions.
(ii) That the petitioner's segregation amounted to inhuman or degrading treatment contrary to article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR); and
(iii) That if there was no breach of article 3, the interference with the petitioner's right to respect for his private life under article 8.1, which is inherent in segregation, was not "in accordance with law" for the purposes of article 8.2, and that accordingly there had been a breach of that article. Reference is made to the breaches of the time limits; the role of a non-statutory committee of the respondents; the lack of a maximum period for segregation; and an alleged absence of a right of appeal against segregation to a judicial authority.
[4] The principal remedies sought by the petitioner are declarators that his segregation between the dates mentioned was ultra vires of the relevant rules and contrary to article 3 ECHR, which failing article 8. In respect of the alleged breach of the Convention, the petitioner seeks damages by way of just satisfaction, though it is recognised that any award would be modest.
[5] In response the respondents accept that there were examples of non-compliance with the time limits specified in the Prison Rules. However there had been substantial observance and, when consideration is given to the scheme and purpose of the Rules, illegality was not the intended consequence of such non-compliance. As to the alleged violation of article 3 of ECHR, it is necessary to consider the whole circumstances, including the conditions and regime, the length of the segregation, and the purpose of the measures taken. Within the prison population there was a high level of feeling against the petitioner on account of his involvement in the murder of Kriss Donald. The view was taken that if he was placed in mainstream accommodation, he would be at serious risk of assault and injury. In the whole circumstances the segregation of the petitioner was not contrary to his rights under article 3. Furthermore any impact on the petitioner's article 8 rights did not attain the necessary level of seriousness, failing which the measures taken were justified in terms of article 8(2). In the event that there has been an infringement of the petitioner's Convention rights, just satisfaction would be afforded by a finding of such breach. The decisions complained of having ceased to have any continuing consequences for the petitioner, the remedies of declarator should be refused (although it was not argued that the present application is academic).
The relevant statutory provisions.
[6] Section 10 of the Prisons (Scotland) Act 1989 provides that a prisoner may be lawfully confined at any prison and be committed to such prisons as the Scottish Ministers may from time to time direct, and may be moved by them from any prison to any other prison. Section 39 of the Act allows the Scottish Ministers to make rules for the regulation and management of prisons. As at 10 October 2005 the relevant provisions for the purpose of section 39 were the Prison and Young Offenders Institutions (Scotland) Rules 1994. On 26 March 2006 those Rules were replaced by the Prisons and Young Offenders Institutions (Scotland) Rules 2006. While there are differences between the two sets of Rules, for present purposes it is sufficient to summarise the relevant provisions of the 2006 Rules. Rule 94 allows the governor of a prison to remove a prisoner from association with other prisoners for the purpose of -
(a) maintaining good order or discipline;
(b) protecting the interests of any prisoner; or
(c) ensuring the safety of other persons.
The removal may be either general or during any period the prisoner is engaged or taking part in a prescribed activity. The petitioner was subject to general removal. Any Rule 94 order must specify the reasons for the order and record the date and time when it is made. No prisoner shall be subject to segregation for a period in excess of 72 hours, except where the Scottish Ministers have granted written authority on the application of the governor prior to the expiry of the said period. Any authority granted by the Scottish Ministers shall have effect for a period of one month commencing from the expiry of the period of 72 hours, but the Scottish Ministers may, on any subsequent application of the governor, renew the authority for further periods of one month commencing from the expiry of the previous authority. At any time the governor of the relevant prison has power to cancel or vary an order. If a prisoner is moved from one prison to another prison, any such order ceases to have effect, but without prejudice to the power of the governor of the new prison to make a Rule 94 order. Where a prisoner has been removed from association, a medical officer is required to visit that prisoner as soon as practicable and thereafter as often as is necessary, but at least once in every seven days.
The facts
[7] A considerable amount of documentation in respect of the petitioner's management over the years has been lodged. I shall now outline the general picture which emerges from that material. In October 2005, when the petitioner was on remand, the authorities were in receipt of intelligence (of the highest grading in terms of reliability) to the effect that other prisoners intended to assault the petitioner and his co-accused, they being regarded as "beasts". On 7 October 2005 the petitioner was admitted to the segregation unit at Barlinnie after assaulting another prisoner. It was noted that the alleged crime had caused
"highly racial motivated feelings within the local remand population and has rendered Mr Shahid a target for retribution from other prisoners. Mr Shahid has refused protection therefore it is seen as the safest option at this stage for Mr Shahid to remain within the segregation unit to allow us to maintain good order and discipline and ensuring the safety of others and to allow us to investigate alternative arrangements as to the safest and most appropriate environment for Mr Shahid".
This set the tone and context for much of the management of the petitioner for the next five years and during his transfers from prison to prison. Throughout that period there continued to be ex facie reliable information that the petitioner would be at risk of harm at the hands of other prisoners. For example, in November 2006, coinciding with the petitioner's conviction, intelligence indicated that, given the nature of the offence, a number of prisoners in HMP Glenochil had indicated that they would seriously assault the petitioner and his co‑accused in the event that they were placed at Glenochil. In general there was at that time, and subsequently, a real concern that, if the opportunity arose, other prisoners would carry out a revenge racial attack upon the petitioner and his co-accused.
[8] On a regular basis Scottish Ministers granted applications by governors for renewal of the petitioner's segregation for the requisite 30 day period. For example, on 9 November 2006 in an extension application the governor at HMP Barlinnie stated
"Mr Shahid was admitted to the segregation unit on Thursday 9 November 2006 from HMP Edinburgh. Mr Shahid had received a life term sentence on Wednesday 8 November for...
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