The King (on the application of Denny De Silva) v The Secretary of State for Justice

Hearing dates: 20 and 21 November 2024

Further evidence and submissions: 27 and 29 November 2024, 2 and 4 December 2024

Approved Judgment

This judgment was handed down remotely at 2:00pm on 24 th January 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Claimant is a Category B prisoner, serving a life sentence. He is currently located in the Separation Centre (“SC”) at HMP Full Sutton. This is one of two small, specialist units, used to manage prisoners with risks associated with extremism and terrorism. By this claim the Claimant seeks judicial review of the decision communicated to him by letter dated 18 September 2023 that he would remain in the SC after an initial assessment period (“the Decision”).

With permission of Fordham J, granted on 19 June 2024, the Claimant relies on a 52-page statement of facts and grounds. The Claimant advances seven discrete, but often overlapping, grounds of review. Several of the grounds incorporated distinct sub-grounds.

Decisions to locate prisoners in an SC are made on behalf of the Defendant by the Separation Centre Management Committee (“the SCMC”). A key element of the Claimant's claim is a challenge to the basis on which the SCMC makes its decisions, in particular the extent to which it needs to resolve factual disputes in the material said to justify location in an SC. It is understood that this is the first time the operation of SCs has been considered in a substantive judicial review claim.

The Claimant served witness statements from himself, as well as Gareth Peirce, Daniel Guedalla and Sally Middleton, his solicitors. He also relied on medical reports from Dr Juliet Cohen, an expert forensic physician, dated 14 December 2023 and 4 October 2024. The Defendant relied on a witness statement from Stephen Waldron dated 23 August 2024. Mr Waldron had been the Operational Lead for SCs from March 2020 to April 2023, before becoming the Operational Lead for Pathways to Progression and Specialist Populations with the Long Term and High Security Estate (“LTHSE”) for HM Prison and Probation Service (“HMPPS”).

Both parties were very ably represented by leading and junior counsel. I am very grateful to them all for their comprehensive yet focussed written and oral submissions in this complex case.

This judgment is structured in the following way, to reflect the parties' agreement as to the issues, and the order in which they should be approached:

The legal framework : ([7]–[10] below);

The factual background : ([11]–[29]);

Factual Issue 1 : What were the reasons for the selection of the Claimant for the SC? ([30]–[59]);

Factual Issue 2 : What was the factual basis for the Decision? ([60]–[92]);

Ground 4 : Was the SCMC's approach to the making of factual determinations unlawful in that it (a) was procedurally unfair (b) involved an unlawful failure to consider relevant considerations (c) involved a failure of the SCMC to discharge its Tameside duty and/or (d) was unreasonable? ([93]–[187])

Ground 2 : The SCMC was not given, and did not consider, any formal reliability gradings for the intelligence contained in the Referral. Did this render the Decision unlawful? In particular did the SCMC fail to take account of relevant considerations and/or was the Decision Tameside irrational? ([188]–[197])

Ground 5 : Was the Decision procedurally unfair because the SCMC did not hold an oral hearing and/or receive oral representations from the Claimant or his representatives? ([198]–[227])

Ground 6 : Was the Claimant provided with adequate reasons for the Decision? ([228]–[240])

Ground 1 : Was the Claimant provided with inadequate disclosure in respect of his selection for placement in the SC, such that the Decision was procedurally unfair and/or represented an unjustified departure from policy? ([241]–[258])

Ground 3 : Did the comments of Professor Zainab Al-Attar during the 12 September 2023 meeting, that the Claimant was a “psychopath” and/or regarding a “personality disorder”, render the Decision Tameside irrational and/or otherwise unreasonable? ([259]–[270])

Ground 7 : Was the Decision incompatible with the Claimant's rights under Article 8 of the European Convention on Human Rights (“ECHR”)? ([271]–[295]).

The legal framework

Under the Prison Act 1952, s.47, the Secretary of State may make rules for, among other things, the “regulation and management” of prisons and for the “treatment” and “control” of prisoners. These rules are currently found in the Prison Rules 1999, as amended.

Rule 45 of the 1999 Rules makes provision for a prisoner to be removed entirely from association with other prisoners, commonly referred to as being placed in segregation.

Rule 46 makes provision for Close Supervision Centres (“CSCs”). These are for prisoners who have demonstrated or evidenced propensity to demonstrate violent and/or highly disruptive behaviour in custody. They are kept in small, highly specialised units or specially designated cells.

Rule 46A makes provision for SCs, in material part as follows:

“(1) Where it appears desirable, on one or more of the grounds specified in paragraph (2), the Secretary of State may direct that a prisoner be placed in a separation centre within a prison.

(2) The grounds referred to in paragraph (1) are—

(a) the interests of national security;

(b) to prevent the commission, preparation or instigation of an act of terrorism, a terrorism offence, or an offence with a terrorist connection, whether in a prison or otherwise;

(c) to prevent the dissemination of views or beliefs that might encourage or induce others to commit any such act or offence, whether in a prison or otherwise, or to protect or safeguard others from such views or beliefs, or

(d) to prevent any political, religious, racial or other views or beliefs being used to undermine good order and discipline in a prison.

(3) A direction given under paragraph (1) must be reviewed every three months.

(4) The Secretary of State may, at any time, revoke a direction given under paragraph (1) and direct that the prisoner be removed from the separation centre.

(5) In exercising any discretion under this rule, the Secretary of State must take account of any known relevant medical considerations”.

The factual background

(i): Separation Centres

The Defendant's Separation Centre Policy Framework (“the SCPF”) explains at paragraph 1.5 that SCs were established in 2017 within the LTHSE to allow for “greater separation and specialised management of terrorist or terrorist risk prisoners, who, irrespective of the type of ideology, present a level of risk that cannot be managed on a mainstream or alternative location”.

It confirms at paragraph 1.6 that the purpose of SCs is to manage those prisoners who meet the criteria in Rule 46A safely. The smaller centre size and higher levels of staffing jointly provide “a highly supervised protective environment to prevent some of the risks that exist in a less restricted environment”. This enables the provision of “individually tailored regimes that support the management of prisoners towards reducing the risks that led to their selection into the separation centre”.

SCs were created as part of the response to the review of Islamist extremism in prisons, probation and youth justice led by Lord Acheson from 2015–2016. The review found that the threat from Islamist extremism (abbreviated to “IE” in the review) can manifest itself in prison in various ways, listed in paragraph 16 of the summary of the review's main findings (August 2016). These include:

“Muslim gang culture and the consequent violence, drug trafficking and criminality inspired or directed by these groups;

TACT offenders [those sentenced under the Terrorism Act 2000 and its successors] advocating support for Daesh and threats against staff and other prisoners;

charismatic IE prisoners acting as self-styled ‘emirs’ and exerting a controlling and radicalising influence on the wider Muslim prison population…

unsupervised collective worship, sometimes at Friday prayers including pressure on supervising staff to leave the room…[and]

books and educational materials promoting extremist literature available in chaplaincy libraries or held by individual prisoners…”.

The summary also noted at paragraph 33 that “illicit mobile phone technology” was “an area of inter-agency concern with relevance to IE”. The review noted that much work was underway to deal with this challenge across the whole prison population, but it recommended that there should be “a particular focus on preventing the possession of mobile phones by TACT and IE prisoners”.

There are two active SCs in England and Wales. Together, they have capacity for 16 prisoners. There are currently 15 prisoners located in SCs.

Prisoners who may be suitable for location in an SC are identified through multi-agency meetings used to oversee the management of an offender's terrorist risk. A referral form is completed. Various reports are obtained and annexed to the form. Part of the process involves an Intelligence Case Manager collating relevant intelligence about the prisoner and creating an appropriate gist thereof.

The referral form is considered at an SCMC...