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

Segregation under Prison Rule 45 involves an expert, evaluative and dynamic assessment of prison safety, rather than a simple determination of disputed facts. Article 6 may therefore be satisfied by structured review procedures supported by effective judicial review, even though the initial decision-maker is not an independent tribunal and sensitive intelligence is not disclosed to the prisoner.

Prisoners must receive adequate reasons, opportunities to attend reviews and make representations, and meaningful scrutiny by independent monitoring bodies. Segregated prisoners are entitled to reasonable and sufficient access to legal advice, but not necessarily precisely the same telephone access as prisoners held on normal location. Any routine governing legal calls must remain rational, reasonable and responsive to individual needs.

The two claimants were high-risk prisoners who had been segregated under Prison Rule 45 for reasons connected with violence, alleged influence over other prisoners and the maintenance of good order and discipline.

They sought judicial review, alleging breaches of the civil limb of Article 6 of the European Convention on Human Rights and, in the first claimant’s case, common law procedural fairness. The second claimant additionally challenged restrictions on telephone access to his lawyers under common law and Prison Service policy.

The central issues were whether the segregation review process required independent fact-finding or disclosure of sensitive intelligence, whether judicial review was an adequate safeguard, and whether the arrangements for legal telephone calls were unlawful.

1. Segregation and Article 6. The applications challenging the decisions to initiate and continue segregation were dismissed. The decisions were not confined to resolving a fixed factual dispute. They required continuing expert assessment of prison conditions, risks, the character and conduct of prisoners, available alternatives and future management.
2. The court accepted that information from other prisoners and security intelligence could not safely be tested through a trial-type process. The authorities were not required to ignore relevant intelligence merely because its source could not be disclosed. The use of sensitive intelligence, together with expert judgment, did not make the process unfair.
3. The safeguards included attendance by a range of officials, regular review, the prisoner’s opportunity to attend and make representations, independent monitoring board scrutiny, recorded reasons, application of the segregation safety algorithm and effective supervision by judicial review. The review process was sufficiently structured and transparent for the High Court to examine procedural defects or unfairness. Adequate reasons had been given in these cases, although review boards were warned against allowing formulaic reasons to become ritualised.
4. The court relied on the second limb of R (King) v Secretary of State for Justice, [2010] EWHC 2522 (Admin), as robust advisory support for the conclusion that judicial review could safeguard Article 6 rights. It was unnecessary to decide whether the reasoning in R (Hague) v Deputy Governor of Parkhurst Prison, [1992] 1 AC 58, remained binding.
5. Legal access. Segregated prisoners must have reasonable and sufficient access to legal advice under common law and Prison Service policy. Equal access to telephones is not required. A routine is lawful only if it remains reasonable and rational and accommodates individual needs. The arrangements at HMP Frankland were imperfect but had not prevented effective legal advice or representation, so this part of the application was also dismissed.