Shahid v Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Judgment Date | 14 October 2015 |
| Neutral Citation | [2015] UKSC 58 |
| Court | Supreme Court (Scotland) |
| Docket Number | No 1 |
| Date | 14 October 2015 |
[2015] UKSC 58
Lord Neuberger, President
Lady Hale, Deputy President
Lord Sumption
Lord Reed
Lord Hodge
Appellant
Kenny McBrearty QC Chris PirieTony Kelly
(Instructed by Taylor & Kelly)
Respondent
Gerry Moynihan QC Douglas Ross
(Instructed by Scottish Government Legal Directorate Litigation Division)
Heard on 18 February 2015
(with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree)
On 8 November 2006 the appellant and his two co-accused were convicted of the racially-aggravated abduction and murder of a 15 year old boy, who was selected at random and abducted from a public street, repeatedly stabbed, and set alight with petrol. The appalling nature of that crime was reflected in the sentences imposed.
The appellant was extradited from Pakistan in order to stand trial, and on 6 October 2005 was remanded in custody pending his trial. On 7 October 2005 he was removed from association with other prisoners and placed in solitary confinement, otherwise described as segregation. Apart from the period immediately prior to and during his trial, when he was accommodated in mainstream conditions, he remained in continuous segregation until 13 August 2010. Altogether, he spent 56 months in segregation.
For a prisoner in Scotland to spend almost five years in segregation is exceptional. The situation of the appellant and his co-accused was exceptional primarily because of the media coverage which they attracted as a result of the nature of their crime. They were notorious as the perpetrators of a crime which, because of its racist nature, and the fact that the victim was a child, was liable to result in their being attacked by other prisoners. In consequence, there were persistent fears for their safety if they were accommodated in mainstream conditions.
In these proceedings, the appellant seeks orders declaring that certain periods of his segregation were contrary to the relevant Prison Rules, and that there were violations of his Convention rights under articles 3 and 8 of the European Convention on Human Rights ("ECHR"), as given effect by the Human Rights Act 1998. He also seeks an award of damages as just satisfaction under section 8 of that Act. The Ministers expressly acknowledge that the nature of the crime committed does not justify a contravention of the appellant's Convention rights. As Lord Steyn observed in ( Roberts) v Parole BoardR [2005] UKHL 45; [2005] 2 AC 738, para 84, even the most wicked of men are entitled to justice at the hands of the state.
The appellant first applied for legal aid to bring this application for judicial review in February 2007, when he had been in segregation for about 15 months. Legal aid was finally granted in June 2010, when he had been in segregation for about four and a half years. The application was heard a year later, by which time his segregation had ended. Following a four day hearing, the Lord Ordinary, Lord Malcolm, refused the application on 18 November 2011: [2011] CSOH 192; 2012 SLT 178. An appeal was refused by an Extra Division, comprising Lord Menzies, Lord Drummond Young and Lord Wheatley, on 31 January 2014: [2014] CSIH 18A; 2014 SC 490.
It may be helpful to begin with the relevant Prison Rules. Section 39 of the Prisons (Scotland) Act 1989 allows the Scottish Ministers to make rules for the regulation and management of prisons. The rules that are relevant to this appeal are the Prisons and Young Offenders Institutions (Scotland) Rules 1994 (SI 1994/1931) as amended ("the 1994 Rules"), which were in force when the appellant entered the prison system on 7 October 2005, and the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (SSI 2006/94) ("the 2006 Rules"), which replaced them on 26 March 2006. They were in turn replaced by the Prison and Young Offenders Institutions (Scotland) Rules 2011 ( SSI 2011/331) ("the 2011 Rules") with effect from 1 November 2011. It is common ground that it is sufficient for the purposes of this appeal to refer to the 2006 Rules, the relevant provisions of which are identical to the corresponding provisions of the 1994 Rules as they stood at the material time.
Rule 94(1) of the 2006 Rules confers a power on the governor (an expression defined for this purpose, by rule 5, as including any authorised unit manager) to order the segregation of a prisoner for specified purposes:
"(1) Where it appears to the Governor desirable 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 Governor may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in a prescribed activity."
The governor is required by rule 94(4) to specify in the order the reasons why it is made and to record in the order the date and time it is made. He is also required to explain to the prisoner the reasons why the order is made and provide the prisoner with a copy of the order.
Rule 94(5) is critical to one of the issues in this appeal. It provides:
"(5) A prisoner who has been removed from association generally or during any period that the prisoner is engaged in or taking part in a prescribed activity by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours."
Rule 94(6) is also critical. It provides:
"(6) An authority granted by the Scottish Ministers under paragraph (5) shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) 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."
Finally, in relation to rule 94, it is relevant to note that, under rule 94(9), any order under rule 94(1), or any authority under rule 94(5), ceases to have effect when a prisoner is transferred from one prison to another. Under rule 94(10), a prisoner who has been removed from association under rule 94 must be visited by a medical officer as soon as practicable and as often as is necessary, but at least once every seven days.
Rule 80(1), (5), (6) and (9) of the 1994 Rules corresponded to rule 94(1), (5), (6) and (9) of the 2006 Rules respectively.
The first issue in the appeal arises from the failure of the authorities, on a number of occasions, to comply with the time limits imposed by rule 94 and its predecessor. It is common ground that three of the orders made on behalf of the Ministers, authorising the appellant's continued segregation under rule 94(5), were granted after the 72 hour period had expired. On each occasion, authority for continued segregation was purportedly granted with effect from the time when the 72 hours had expired. It is also common ground that 11 of the renewals of authority on behalf of the Ministers under rule 94(6) or its predecessor were granted after the previous authority had expired. The renewals again purported to be backdated so as to leave no interval when authorisation was absent.
It is argued on behalf of the appellant that the late authorisations under rule 94(5) were invalid, and that the appellant's segregation during the period purportedly authorised was therefore unlawful. Furthermore, it is argued, the purported renewals of the invalid authorisations under rule 94(6) were equally invalid. In addition, it is argued, all late renewals under rule 94(6) were invalid, and all subsequent renewals following upon a late renewal were also invalid. On that basis, it is argued that the appellant's segregation was unauthorised for periods totalling 32 months: about 14 months arising from invalid authorisations under rule 94(5), and a further 18 months arising from late renewals under rule 94(6). On behalf of the Ministers, on the other hand, it is argued that the lateness of the orders had no effect upon their validity.
The courts below accepted the Ministers' submissions on this point. They focused upon the limited extent to which the orders were late, when considered in the context of the appellant's segregation as a whole, and took the view that, notwithstanding their lateness, they achieved the intended purpose of ensuring that segregation was maintained only for so long as was necessary, and that the position of the prisoner was regularly reviewed. In those circumstances, they inferred that the legislator could not have intended the lateness of the authorisations to invalidate continued segregation.
The critical issue is the construction of the legislation. Considering rule 94(5) in the first place, it plainly means that segregation by virtue of an order made under rule 94(1) should not continue beyond the initial 72 hours from the time of the order, unless authority has been granted before the 72 hours have expired:
"A prisoner … shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours."
The words "shall not be subject to such removal … except" mean that what follows is a pre-condition to lawful segregation for a period in excess of 72 hours from the time of the order. The words...
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