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

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Lord Justice Lloyd,Lord Justice Elias
Judgment Date27 March 2012
Neutral Citation[2012] EWCA Civ 376
Docket NumberC1/2011/1139, C1/2011/0619,Case No: C1/2011/1139, C1/2011/0619
CourtCourt of Appeal (Civil Division)
Date27 March 2012

[2012] EWCA Civ 376

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ADMINISTRATIVE COURT

PITCHFORD LJ AND MADDISON J(1)&(2) AND IRWIN J (3)

Ref: CO77972009 and CO62712010/CO6733201

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division

Lord Justice Lloyd

and

Lord Justice Elias

Case No: C1/2011/1139, C1/2011/0619

Between:
The Queen on the Application of (1) Ben King
Appellant
and
Secretary of State for Justice and the Queen on the Application of (2) Kamel Bourgass and (3) Tanvir Hussain
Respondent Appellants

and

Secretary of State for Justice
Respondent

Ms Phillippa Kaufmann QC (instructed by Irwin Mitchell LLP) for the first Appellant

Mr Hugh Southey QC (instructed by Birnberg Peirce & Ptners) for the second and third Appellants

Mr Sam Grodzinski QC (instructed by Treasury Solicitors) for the Respondent

Hearing dates : 12–14 December 2011

Lord Justice Maurice Kay
1

These separate cases raise common issues of some importance concerning procedures relating to decisions to move prisoners or detainees from normal regimes to cellular confinement or segregation. Ben King is now aged 21. In April 2009, he was serving a seven year sentence in a Young Offender Institute (YOI) for causing death by dangerous driving. He was detained at HMP Portland. Between 11 and 13 April he was subjected to cellular confinement following a disciplinary charge of failure to comply with a lawful order. Kamel Bourgass and Tanvir Hussain are adult prisoners of some notoriety. Bourgass is serving a sentence of life imprisonment for the murder of a police officer and seventeen years' imprisonment for conspiracy to commit public nuisance by the use of poisons and/or explosives (an offence which occurred in the course of "the Ricin plot"). In March 2010, whilst detained in HMP Whitemoor, he was subjected to segregation for reasons of good order and discipline pursuant to Prison Rule 45. He was segregated from 10 March until 22 April and again from 23 April until October or November of that year. Hussain, too, is serving a long sentence for terrorism-related offences. In April 2010, he was detained at HMP Frankland. On 24 April he was found to have carried out a serious attack on another prisoner. He was subjected to segregation pursuant to Prison Rule 45 until October 2010. During their periods of segregation, the cases of Bourgass and Hussain were regularly considered by Segregation Review Boards (SRBs).

2

In these proceedings, all three appellants claim that the decisions to place and/or keep them in cellular confinement or segregation were unlawful, principally (but not wholly) by reference to Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). In addition, Hussain claims that, whilst segregated, he was denied access to legal advice by telephone in breach of PSO1700. King's application for judicial review was dismissed by the Divisional Court (Pitchford LJ and Maddison J) on 13 October 2010: [2010] EWHC 2522 (Admin). The applications on behalf of Bourgass and Hussain were dismissed by Irwin J on 18 February 2011: [2011] EWHC 286 (Admin).

The statutory procedures

(1) YOIs

3

The Young Offender Institution Rules 2000 were made pursuant to the power conferred upon the Secretary of State by section 47 of the Prison Act 1952. Disobeying a lawful order is an offence against discipline: rule 55(25). Where an inmate is to be charged with an offence against discipline, the charge must be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence. There are two forms of inquiry. In a case where a finding of guilt is of a seriousness which would justify an award of additional days, the Governor refers the matter to an independent adjudicator (in practice, a District Judge): rule 58A. There is also a discretion to refer to an independent adjudicator where it is "necessary or expedient for some other reason": ibid. In all other cases, of which the case of King was one, the charge is inquired into by the Governor: rule 58(2). By rule 59, the inmate must be informed of the charge as soon as possible. At the inquiry, he must be given an opportunity of hearing what is alleged against him and of presenting his own case. There is a right to legal representation before an independent adjudicator but not before a Governor. Rule 60 lists the range of punishments at the disposal of a Governor. It includes:

"in the case of an offence against discipline committed by an inmate who was aged 18 or over at the time of the offence …, confinement to a cell or room for a period not exceeding ten days." (Rule 60(1)(f)).

4

Before deciding whether to impose cellular confinement, the Governor must enquire of a registered medical practitioner or registered nurse, working within the YOI, as to whether there are any medical reasons why the punishment is unsuitable and must take this into account when making his decision: rule 61(1). A cell used for confinement must be certified as suitable by an officer of the Secretary of State: rule 61(2).

5

The deployment of independent adjudicators was inserted into the Rules by amendment following the Strasbourg judgment in Ezeh and Connors [2004] 39 EHRR 1 which was concerned with the procedure required in relation to awards of additional days.

(2) Prisons

6

Section 47 of the Prison Act 1952 was also the source of the Prison Rules 1999. Segregation or, more properly, "removal from association" is governed by rule 45, which 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 other purposes, the governor may arrange for the prisoner's removal from association accordingly.

(2)A person 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."

7

The powers of the Secretary of State pursuant to rule 45(2) are vested in Segregation Review Boards. Much of the relevant policy and provision is contained in Prison Service Order 1700. I shall have to return to PSO1700 in more detail later. At this stage, I simply record that it deals with, among other things, the constitution of SRBs.

8

By section 6 of the Prison Act 1952, the Secretary of State must appoint an Independent Monitoring Board (IMB) for each prison. It consists of members of the public who are wholly independent of the Secretary of State. PSO1700 does not require that a SRB includes a member of the IMB but, in practice such inclusion generally occurs, as it did in the cases of Bourgass and Hussain. IMBs are governed by Part V of the Prison Rules.

The facts in outline

(1) King

9

At the time of sentence in the Crown Court, King was assessed as suffering from an anti-social personality disorder with prominent mood instability. The commission of the offence of causing death by dangerous driving had also left him with post-traumatic stress disorder. Psychologists considered him to be psychopathic. His cellular confinement on 11 April 2009 was imposed for failure to comply with a lawful order. He had refused to come out of a shower/toilet cubicle when instructed to do so. His explanation was:

"I was hearing voices. I heard [them] in the chapel and had problems with them. I started to lash out in the toilet. I wanted them to leave me alone. I was squashed against the wall. I am having a rough time at the moment."

10

In answer to a question from the Governor, Mr Shepherd, he referred to his mental health provision and said "I am very disturbed." Governor Shepherd caused him to be medically assessed in accordance with Rule 60(1)(f) and, having received medical advice that King could cope with a short period of cellular confinement, he imposed a punishment of three days' confinement. In the event, King was returned to his normal routine after less than two days.

(2) Bourgass

11

Bourgass had previously been held in HMP Wakefield where he had been considered to have influence over other prisoners and to be involved in bullying and intimidation. Similar traits were observed following his transfer to HMP Whitemoor. On 14 February 2010 he was placed on an anti-bullying regime. There was evidence that his response was not satisfactory. On 10 March he was involved in an incident with another prisoner, MS, in the course of which Bourgass was assaulted. MS claimed that that was the result of bullying by Bourgass. A Duty Governor decided to segregate Bourgass pursuant to Prison Rule 45 for reasons of good order and discipline. The segregation was reviewed by a Segregation Review Board pursuant to Prison Rule 45(2) and PSO1700 on 13 March, 23 March and 6 April. It was considered that Bourgass had been responsible for an escalation of violence in the Prison "for faith related reasons" and that his influence over other prisoners was a threat to good order and security.

12

Bourgass was removed from segregation on 22 April. On the following day someone (not Bourgass) attempted to murder MS. That morning, Bourgass had been seen on CCTV in conversation with the assailant and the prison authorities later received intelligence that Bourgass had been involved in organising the attack on MS in retaliation for the events of 10 March. The Segregation Unit Manager decided to renew Bourgass' segregation. On 23 April, a member of the IMB was informed. On 26 April the SRB met to consider the case. Those present included a Governor, a member of the Healthcare Department, a member of the Mental Health Team, an IMB member and a senior officer from the Segregation Unit. The SRB found no evidence of...

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