Nadir Syed v The Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Lord Justice Haddon-Cave,Lord Justice Hamblen,Sir Terence Etherton |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] EWCA Civ 367 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/1201 and C1/2017/1216 |
| Date | 07 March 2019 |
[2019] EWCA Civ 367
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE LEWIS
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Sir Terence Etherton
Lord Justice Hamblen
and
Lord Justice Haddon-Cave
Case No: C1/2017/1201 and C1/2017/1216
Mr Dan Squires QC (instructed by Birnberg Peirce Ltd) for the Appellant
Sir James Eadie QC and Mr Andrew Sharland QC (instructed by Government Legal Department) for the Respondent
Hearing date: 13 th February 2019
APPROVED JUDGMENT
Introduction
The issues in this appeal concern the lawfulness of the transfer of a prisoner to the “Managing Challenging Behaviour Strategy Unit” (“MCBS Unit”) at HMP Woodhill on 2 nd November 2016.
In his appeal ( C1/2017/1201), Nadir Syed (“NS”) challenges the judgment of Lewis J dated 7 th April 2017 whereby the Judge held that NS's transfer to the MCBS Unit at HMP Woodhill did not amount to a “removal from association” within rule 45 of the Prison Rules.
In the cross-appeal (C/2017/1216), the Secretary of State for Justice (“SSJ”) challenges Lewis J's finding that the restrictions imposed on NS in the MCBS Unit amounted to an interference with NS's right to respect for private life under Article 8(1) of the European Convention on Human Rights (“ECHR”), i.e. Article 8 ECHR was engaged, and the interference was required to be justified under Article 8(2).
The Facts
Arrest, remand and conviction
On 20 th November 2014, NS was arrested on terrorist charges and remanded in custody. He was aged 21 at the time. NS was initially remanded to HMP Wandsworth. On 18 th May 2015, NS was transferred to HMP Belmarsh.
On 9 th December 2015, NS was convicted by a jury at Woolwich Crown Court of doing an act preparatory to committing an act of terrorism contrary to s.5 of the Terrorism Act 2005 (“TA 2005”). NS had earlier been prevented from travelling abroad to Syria where he intended to join the so-called Islamic State (Daesh). NS subsequently purchased a large kitchen knife with the intention of attacking an innocent member of the public in the street and beheading them. He was planning to carry out an attack on a date close to Armistice Day in 2015.
Segregation custody – December 2015 to November 2016
Following conviction on 9 th December 2015, NS was made subject to a “removal from association” order under Rule 45 of the Prison Rules and placed in segregation. The prison authorities had received intelligence reports that NS had been planning to behead a member of the prison staff should he be convicted.
On 15 th December 2015, NS was transferred to HMP Thameside. Thereafter, NS remained in segregation for the next 11 months until his transfer to the MBCS Unit at HMP Woodhill on 2 nd November 2016 (see further below). His segregation was thereafter reviewed regularly by the Segregation Review Board and the Deputy Director for Custody in accordance with Rule 45 of the Prison Rules.
On 7 th January 2016, disturbances took place in which NS was involved. Throughout the morning, NS and two other prisoners were heard banging on their cell doors, shouting “ Allahu Akbar”, shouting at staff that they (the staff) were oppressing Muslims and making threats of beheading. One officer heard NS say that if the staff violated one “ brother” they violated all. An officer reported that at 12:15 pm he had been attending a prisoner in a neighbouring cell when NS came to the observation hatch in his cell and shouted that he would behead “ us all” (which Lewis J took as a reference to prison officers) and that the officer in question would be first.
On 22 nd January 2016, NS was transferred to HMP Whitemoor.
On 23 rd June 2016, NS was sentenced to life imprisonment with a minimum term of 15 years imprisonment. The sentencing judge, Saunders J, said that he had no doubt that NS was dangerous and “will remain dangerous until the threat from Islamic terrorists has gone”.
In September 2016, consideration was given to transferring NS from segregation to a “Closed Supervision Centre” (“CSC”). On 22 nd September 2016, the relevant committee decided not to transfer NS from segregation to the CSC but to transfer him to the MCBS Unit at HMP Woodhill. In the decision letter dated 22 nd September 2016, which is the subject of NS's challenge in this appeal, Governor Tempest explained:
“Mr Syed's level of risk to others does need to be further assessed and considered, and that a main wing location at this time would therefore not be appropriate. The decision was therefore that he will be managed and supported under the Central MCB (Managing Challenging Behaviour) Strategy, and transferred to a Central MCB Unit once a space becomes available. This will enable him the opportunity to access the ERG [Extremist Risk Guidance] assessment, and other assessment and intervention work deemed appropriate with a multi-disciplinary team. He will also be able to access a greater regime, and association with a small group of others subject to risk assessment, and if/when risk assessed as appropriate an opportunity for reintegration back onto a normal location.”
NS's transfer to MCBS Unit – 2 nd November 2016
On 2 nd November 2016, NS was transferred to the MCBS Unit at HMP Woodhill. He had been there for over 4 1/2 months by the time the matter came before Lewis J on 21 st March 2017.
Lewis J made the following detailed findings of fact regarding the nature of NS's regime in the MCBS Unit (at paragraphs [19]–[26] of his judgment):
“Association with other prisoners
19. Between arrival on 2 November 2016 and 6 (or 7) November 2016, NS did not have any association or contact with other prisoners but was held alone in his cell. The Defendant accepts that, during this period, he was removed from association, or in segregation (albeit within the Unit) and as such authorisation for removal was required pursuant to rule 45(2) of the Rules. The Defendant contends that such authorisation did exist and authorised removal from association up to 15 November 2016: see the witness statement of Carolyn Lund dated 24 March 2017. NS contends that the authorisation expired on 2 November 2016: see paragraph 4 of the note dated 28 March 2017 and fourth witness statement of NS. As no challenge is made in these proceedings to the decision to segregate NS (the challenge is to the decision to transfer him to the Unit), it is not necessary in these proceedings to resolve that specific dispute.
20. From 7 (or 8) to about 24 November 2016, there were two groups of prisoners in the Unit. NS was able to associate with other prisoners, outside of his cell, for 2 hours and 15 minutes on four days a week, two hours and 5 minutes on a fifth day a week, and for periods of 95 minutes on the remaining two days a week. See Claimant's 1 st witness statement dated 20 December 2016 at paragraph 34 and the timetable attached to Mr Waldron's first statement dated 24 February 2017.
21. From about 24 November to 20 December 2016, the evidence is that there were three groups of prisoners in the Unit, and NS was able to associate with prisoners in one of those groups for under 2 hours a day on 5 days a week and 1 and 1/2 hours on each of the remaining two days in the week (see Claimant's 1 st witness statement dated 20 December 2016 at paragraphs 35 and 36).
22. From about at least 21 December to about 24 February 2017, the evidence is unclear. Certainly, as at 6 March 2017, NS's evidence is that there were seven prisoners held in two groups (see NS's 2 nd witness statement dated 6 March 2017). NS does not indicate at what date the number of groups went down from three to two groups. The evidence of Mr Waldron is that as at 24 February 2017 there were two groups in the Unit. His evidence is that there were usually two groups and dividing prisoners into three groups was always a temporary measure (see paragraph 6 of Mr Waldron's second witness statement) although NS disputes this. The likelihood is that at least from 24 February 2017, and quite probably earlier, there were two groups and the time NS had for association is as set in paragraph 19 above. At some stage between 20 December 2016 and 24 February 2017, therefore, the number of groups reduced from three groups (when NS had less than two hours a day to associate with other prisoners) to two groups (when NS would have had the time set out in paragraph 19 above for association with other prisoners).
23. From 11 March 2017 to either 14 March 2017 (on the Defendant's case) or to the 17 March 2017 (NS's case), there were again three groups with the result that the time that NS had for association with other prisoners would be less than 2 hours: see paragraphs 3 to 5 of Mr Waldron's second statement. Thereafter to the date of the hearing on 21 March 2017 there appears to have been two groups and the time for association was as in paragraph 20 above.
Other Time Spent Outside the Cell and Engaging in Other Activities
24. From the 7 (or 8) November 2016 to the present, NS has had one hour of exercise each day (which he could undertake alone or with 1 other prisoner). On 5 days a week, he was able to leave his cell and carry out domestic chores for 30 minutes a day but was alone for this period and locked in the place where the chores were performed.
25. From the 2 February 2017, NS has been able to go to the library (which is located elsewhere in the prison, not in the Unit). He is able to visit the library with one other prisoner and is escorted by prison officers. Other prisoners do not use the library at the time that he does. There may be prisoners working in the library but NS has never seen them. The total...
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