Imran Shahid V. The Scottish Ministers

JurisdictionScotland
JudgeLord Drummond Young,Lord Menzies,Lord Wheatley
Judgment Date31 January 2014
Neutral Citation[2014] CSIH 18A
Published date31 January 2014
CourtCourt of Session
Date31 January 2014
Docket NumberP1406/09

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2014] CSIH 18A

Lord Menzies Lord Drummond Young Lord Wheatley

P1406/09

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in the reclaiming motion

IMRAN SHAHID

Petitioner & Reclaimer;

against

SCOTTISH MINISTERS

Respondents:

_______________

Petitioner: O'Neill, QC; Kelly, Solicitor Advocate; Balfour & Manson LLP (for Taylor & Kelly, Coatbridge)

Respondents: Ross; Scottish Government Legal Directorate

31 January 2014

[1] On 8 November 2006 the petitioner was convicted of the racially motivated murder of a 15-year-old-boy, Kriss Donald. His brother and another man were also convicted of the murder. The Lord Ordinary notes that the crime was brutal and sadistic, and had raised strong feelings at the time and subsequently. The petitioner was sentenced to life imprisonment with a punishment part of 25 years. On 10 October 2005, while he was on remand, the petitioner was removed from general association with other prisoners ("segregated"). Apart from a short period during his trial, from September to November 2006, he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners ("mainstream"). The petitioner now claims that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and article 8 of the same Convention, which protects the right to private life.

[2] In the present petition the petitioner seeks judicial review of the decisions to segregate him made by the prison authorities. He seeks three declarators: first that his segregation during certain specified periods was ultra vires of rule 94 of the 2006 Rules; secondly that his segregation in the circumstances referred to was contrary to article 8 of the Convention and accordingly ultra vires in terms of section 57(2) of the Scotland Act 1998 and section 6 of the Human Rights Act 1998; and thirdly that the acts of the respondents in segregating him during the entire period from 10 October 2005 to 13 August 2010 were incompatible with his rights under article 3 of the Convention and accordingly ultra vires of Scottish Ministers in terms of the same two sections. Damages of £6,000 are sought by way of compensation. The respondents, the Scottish Ministers, are responsible for the general superintendence of prisons. They appoint governors and other officers of prisons in Scotland, and they are liable for any wrongful acts of those officials.

Findings in fact
[3] In his opinion the Lord Ordinary made detailed findings of fact.
The legal representatives of the reclaimer accepted that these set out the facts of the case accurately, although obviously they did not accept the approach to those findings taken in other parts of the Lord Ordinary's opinion, and they suggested that other matters were significant. In our view the Lord Ordinary's findings in fact set out accurately the essential facts of the case, and we now reproduce them and adopt them as part of the present opinion. Those findings are as follows:

"[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 the murder of a 15 year old white male. This murder and trial had been high profile with a great deal of media interest being shown throughout the duration of the court case. This crime has caused highly racial motivated feelings within the local prisoner population and has rendered Mr Shahid a target for retribution from other prisoners. Mr Shahid is aware of the reasons that he is currently housed within segregation and appreciates that if he were to be located within any residential function, this would result in him being a target of assault and abuse'.

As to the reason why an extension was necessary, the governor stated

'Mr Shahid has settled into the segregation unit regime and has been polite and respectful to staff since admission. He has refused any suggestion of protection; however, during discussion, when challenged, he has stated that he will seriously assault any prisoner who he sees as a threat if he was to return to the mainstream environment and understands the requirement for him to be located separately and safely at this time. He is aware that other prisoners will attempt to assault him because of the high feeling of retribution towards him due to the nature of his crime. It is seen as the safest option at this stage for Mr Shahid to remain within the segregation unit; therefore, we request that a Rule 94 be granted to allow for the maintaining of good order and discipline whilst protecting the interest of others'.

That application was granted on behalf of the Scottish Ministers by the operations manager of the Scottish Prison Service on 10 November 2006.

[9] A meeting was held on 22 November 2006 between the managers responsible for the segregation units within HM Prisons Shotts, Glenochil, Barlinnie, Perth and Edinburgh. The stated purpose was to heighten awareness of the level of threat towards the petitioner and his co-accused from other prisoners based upon intelligence received, and to agree a rolling programme for their management and progression ensuring that guidelines on the management of prisoners removed from association were followed. It was agreed that all prisons would have to look at their own measures as the geography of each location was different and presented its own risks. It was agreed that the prisoners would be kept separate and safe at all times. Each prisoner would be treated as an individual. The responsible managers would meet every two months prior to transfer of the prisoners to discuss background reports, progress to date and any issues that may be relevant to their future management at another establishment. This would ensure continuity and consistency. An agreed chart was compiled showing the intended locations for each of the prisoners over the following twelve months. Transfers would take place in consultation with each prison.

[10] In the next extension application the governor indicated that Mr Shahid had settled into the segregation unit regime "without too much fuss". However there was still a lot of media coverage of the offence and serious threats were being made should he be located in a mainstream environment. His safety could not be guaranteed 'hence the need for an extension to this current Rule 94 period.' It was also noted that the petitioner

'is getting agitated that he is not getting the opportunity to progress to mainstream conditions - he knows that other prisoners will have a go at him but he feels he can handle it without too much bother as he has loads of friends in the LTP (long term prisoner) system - he is fully aware of why we are holding him on Rule 94 conditions but feels he should be allowed to take care of himself come what may'.

In the coming months matters continued in similar vein. The paperwork indicated that the petitioner was being "managed by ECMDP" (the Executive Committee for the Management of Difficult Prisoners) and "as such they determine his location". On 22 March 2007 it was stated that the petitioner "would be held in segregation until a decision was taken by the ECMDP to relocate Mr Shahid to a mainstream regime". At around that time Mr Shahid was suggesting that he be segregated along with his co-accused. He was making it clear that he did not want to be in segregation.

[11] In March 2007 intelligence indicated, that whilst on route to the gym, the petitioner was subjected to racial abuse from a large group of...

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