R (on the application of Bourgass and another) v Secretary of State for Justice

JurisdictionEngland & Wales
JudgeLord Sumption,Lord Hodge,Lady Hale,Lord Neuberger,Lord Reed
Judgment Date29 July 2015
Neutral Citation[2015] UKSC 54
Date29 July 2015
CourtSupreme Court
R (on the application of Bourgass and another)
(Appellants)
and
Secretary of State for Justice
(Respondent)

[2015] UKSC 54

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Sumption

Lord Reed

Lord Hodge

THE SUPREME COURT

Trinity Term

On appeal from: [2012] EWCA Civ 376

Appellants

Dinah Rose QC

Dan Squires

(Instructed by Birnberg Peirce and Partners)

Respondent

Sam Grodzinski QC

David Lowe

(Instructed by Government Legal Department)

Intervener (The Howard

League for Penal Reform)

Edward Fitzgerald QC

Martha Spurrier

(Instructed by Clifford Chance LLP)

Heard on 16 and 17 February 2015

Lord Reed

( with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree)

1

These appeals are concerned with the procedure followed when a prisoner is kept in solitary confinement, otherwise described as "segregation" or "removal from association". The principal question raised is whether decisions to keep the appellants in segregation for substantial periods were taken lawfully. Before the courts below, the arguments focused on the procedural requirements of article 6.1 of the European Convention on Human Rights ("the ECHR"). Before this court, the primary focus of the parties' printed cases was upon the requirements of procedural fairness at common law. During the course of the hearing, however, a different issue came to the forefront, namely whether the segregation was authorised as required by the applicable legislation. For the reasons I shall explain, I have concluded that it was not.

2

In the light of that conclusion, the question whether the requirements of procedural fairness were met does not affect the outcome of these appeals. Nevertheless, the nature of those requirements in this context is a question of general public importance, which has divided judicial opinion and was fully and carefully argued in these appeals. In the circumstances, it is appropriate that this court should deal with it.

3

It may be helpful to begin, however, by summarising the relevant factual background, considering first the history of events, and then the conditions of segregation.

The first appellant: the history of events
4

In 2010 the first appellant, Kamel Bourgass, was a prisoner in HMP Whitemoor, which is a high security prison. He was serving a life sentence for the murder of a police officer, concurrent sentences for the attempted murder of two other officers and the wounding of a third, and a 17 year sentence for being part of a terrorist conspiracy to commit public nuisance by the use of poisons and/or explosives.

5

On 10 March 2010 Bourgass was the victim of an assault by another prisoner named Sahebzadeh. Bourgass was then segregated under rule 45(1) of the Prison Rules 1999 (SI 1999/728) ("the Rules"), for reasons of good order and discipline. He was charged with an offence against discipline, it being alleged by a prison officer that he had been fighting with Sahebzadeh. He appeared before a governor the following day, when he denied the charge and was remanded.

6

Bourgass's segregation was reviewed after 72 hours, on 13 March 2010, and thereafter at fortnightly intervals, on 23 March and 6 April 2010. The review was carried out by a Segregation Review Board ("SRB"). On each occasion, authority for continued segregation was given, purportedly in compliance with rule 45(2), by the senior prison officer who chaired the SRB (the officer on two of these occasions being Mr Colley, the "challenging prisoners manager"), on the ground that the investigation into the incident had not yet been completed. On 20 April 2010 Bourgass was found not guilty of the disciplinary charge. On 22 April 2010 he was removed from segregation. In a memorandum of the same date, he was notified by the head of security at the prison that intelligence suggested that he held extreme views, that he exerted a significant influence over other prisoners, and that "we suspect you of being linked to threats to other prisoners". In a letter dated 14 May 2010, the prison informed Bourgass's solicitors that he had been kept in segregation during that period as he was "influencing other prisoners in their activities".

7

On 23 April 2010 Sahebzadeh was seriously assaulted. Bourgass was not present. He was however segregated under rule 45(1) on the orders of Mr Colley, the reason given being that it was for the maintenance of good order and discipline pending an investigation into a serious assault. Authority for continued segregation was given on 26 April 2010 by another officer, the same reason being given. The assault was referred to the police for investigation. On 29 April 2010 Bourgass's solicitor, Mr Guedalla, wrote to the governor pointing out that his client had not been present at the time of the assault, and requesting an outline of the evidence relied on to justify his segregation. In a letter dated 30 April 2010, the "dynamic security governor", Mr Garvie, stated that "although not in the area of this assault we believe your client, along with others was behind this assault and as such his presence on normal location poses a threat to the good order and discipline of the Establishment".

8

On 4 May 2010 authority for Bourgass's continued segregation was given by Mr Colley on the ground that "you were involved in a serious assault". At about the same time Bourgass was referred for an assessment for transfer to the Close Supervision Centre ("CSC"), which houses prisoners considered too dangerous and challenging to be held in ordinary locations.

9

On 12 May 2010 Mr Guedalla wrote again asking for information about the evidence relied on. On 14 May 2010 the prison replied, stating that Bourgass was being held in segregation "due to his involvement in the planning of an assault on another prisoner [which] is currently being investigated by the police". Continued segregation was authorised on 18 May 2010 "pending an investigation into a serious assault". In a letter of the same date, Mr Guedalla again requested an outline of the evidence relied on.

10

On or before 20 May 2010 the police indicated that they did not regard Bourgass as a suspect in connection with the assault on Sahebzadeh, and that he was no longer the subject of investigation by them. Mr Guedalla then wrote to the governor again, referring to the outcome of the police inquiries and requesting disclosure of the reasons for any further segregation, and of the evidence relied on to support it. The prison replied by letter dated 26 May 2010, stating that the investigation was still ongoing. In a letter to Mr Guedalla dated 28 May 2010, Mr Colley stated that Bourgass "is a prisoner we believe to hold extremist views and has an influence over other prisoners", that he was being referred to the CSC, and that he would remain segregated until the result of that referral was known.

11

On 1 June 2010 Bourgass's continued segregation was authorised by Mr Colley, the reason given being that "you are an unacceptable risk to other prisoners". Mr Colley authorised continued segregation again on 15 June 2010, the reason given being "pending CSC referral and investigation". He authorised continued segregation again on 29 June 2010, giving the reason "you are being investigated for a serious assault", and again on 13 July 2010, giving as his reason that "you were involved in a very serious assault". Continued segregation was again authorised on 27 July 2010 by another officer, on the ground that a final decision was awaited on the CSC referral.

12

In the meantime, Mr Guedalla had initiated judicial review proceedings, which were listed for a hearing on 4 November 2010. On 17 June 2010 the Secretary of State filed a response which said that Bourgass was not being segregated "simply because he may be responsible for the assault, but because, for numerous reasons, he is considered to pose an unacceptable risk on normal location". The additional reasons were based on intelligence that he had been involved, prior to the commencement of his segregation on 10 March 2010, in "intimidating other prisoners to change faith", and "forcing other prisoners to join in prayer sessions and to refrain from eating certain foods for religious reasons".

13

On 2 August 2010 the Secretary of State filed detailed grounds of defence, which disclosed that the basis upon which Bourgass was suspected of involvement in the assault on Sahebzadeh was principally that, during the morning prior to the assault, he had been seen on CCTV speaking to the perpetrator of the assault. It is difficult to understand why that information, and indeed the CCTV footage itself, had not been provided during the previous three months.

14

The Secretary of State also filed a witness statement of Mr Garvie, who stated that Bourgass had been transferred to Whitemoor in the first place because of his perceived influence over other prisoners at his previous prison and suspicion that he was bullying and intimidating other prisoners there. On his arrival at Whitemoor, he had been placed on the prison's anti-bullying regime but, according to Mr Garvie, had failed to engage with it and had continued his attempts to intimidate other prisoners. His initial segregation after the incident on 10 March 2010 had been a reaction to that incident, but it had been decided that he should remain in the segregation unit because it was believed that his attempts to influence other prisoners had caused Sahebzadeh to assault him out of frustration. There had been an escalation in violence within the prison that involved prisoners being pressurised into assaulting other prisoners for faith-related reasons. It was believed that Bourgass was involved in this. Following his removal from segregation on 23 April 2010, he had again been segregated because he was known to have met the perpetrator of the assault which took place that day, there was...

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