Bary & Ors, R (on the application of) v Secretary of State for Justice & Anor

A high-security prison governor has a broad operational discretion, but decisions affecting detainees remain subject to domestic public law and Convention rights. A restrictive regime may be reasonable and proportionate where justified by genuine and evidenced security concerns, including risks of radicalisation and unauthorised communication. Article 3 requires a fact-sensitive assessment of the cumulative conditions, duration, purpose and effects of detention, including the detainee’s vulnerability. Article 8 may protect detainees’ ability to develop relationships and preserve mental stability. Any interference must pursue a legitimate aim and be proportionate, having regard to the right, its importance, the nature of the interference and its object. Prison authorities must keep such decisions and regimes under review.

Six men detained in the Detainee Unit at HMP Long Lartin while awaiting extradition or deportation sought judicial review of a decision by the governor on 8 December 2008. The decision confined detainees to the Unit, save principally for healthcare appointments and visits, following the return of Omar Othman, whom the governor regarded as presenting risks of radicalising prisoners and planning or inciting terrorist acts.

The claim challenged the decision as irrational, unreasonable, disproportionate and made for an improper purpose. Two claimants alleged breaches of Article 3 of the ECHR because of their mental health conditions. All claimants alleged unjustified interference with Article 8 rights to develop relationships and preserve mental stability. The court also considered whether the regime had been kept under effective review.

1. Domestic public law. The governor had a wide discretion in the operational organisation of a high-security prison and the treatment of Category A detainees. The decision was based on genuine and reasonable concerns about Mr Othman’s possible influence, radicalisation of young Muslim prisoners and use of mobile phones to communicate outside the prison. It was reasonable and rational to apply the regime to all detainees because confining Mr Othman alone was not a realistic option. The concern about adverse media comment was not a legitimate reason, but it was not the driving force behind the decision. The decision was proportionate and the failure to explain the reasons fully at the outset did not invalidate it.
2. Review. The prison authorities were under a continuing duty to review both the decision and the details of the regime. Monthly review meetings and subsequent changes showed that this duty had been discharged. The absence of fundamental alteration did not establish irrationality or an improper purpose.
3. Article 3. Detention in a high-security prison, even with separation from other prisoners, does not itself breach Article 3. The court had to assess the physical conditions, regime, isolation, risks, purpose, duration, vulnerability, family contact, medical provision and effects on health, applying the necessary high standard of proof. The evidence showed that Mr Bary’s deterioration was attributable partly to the regime and partly to other stressors. Mr Ahsan had not suffered serious deterioration. Neither claimant proved inhuman or degrading treatment.
4. Article 8. The restrictions interfered seriously enough with the detainees’ rights to develop relationships and preserve mental stability to engage Article 8(1). The aims of preventing crime and disorder and protecting the rights and freedoms of others were legitimate. Having regard to the importance of the rights, the substantial confinement and the national-security risks, the collective regime was proportionate and the least objectionable effective option. The claims were dismissed.

The court refused permission to appeal to the Court of Appeal. It held that the domestic-law challenge involved an evaluation of the facts after hearing the governor and another prison officer, and disclosed no reasonable prospect of success.