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

Decisions to place or retain a prisoner in cellular confinement or segregation do not necessarily determine a “civil right” under Article 6 ECHR. Association with other prisoners was treated by the majority as a normal privilege, subject to withdrawal under the prison rules and review by judicial review. The urgent, expert and institution-specific nature of prison-management decisions also justified internal decision-making. Even if Article 6 had been engaged, the combination of governor and Segregation Review Board procedures, diverse professional participation and full judicial review supplied an Article 6-compliant process. The Court of Appeal remained bound by Hague on reasons for segregation. Hussain’s telephone access was sufficient under PSO1700 and common law.

Three prisoners challenged decisions imposing or continuing cellular confinement or segregation. King had received three days’ cellular confinement in a young offender institution after a disciplinary charge. Bourgass and Hussain were segregated under Prison Rule 45 for good order and discipline, with their cases reviewed by Segregation Review Boards. Hussain also challenged restrictions on telephone access to his solicitor.

The Administrative Court dismissed King’s claim in [2010] EWHC 2522 (Admin). Irwin J dismissed the claims by Bourgass and Hussain in [2011] EWHC 286 (Admin). The appeals raised whether Article 6 applied to the internal decisions, whether judicial review could cure any lack of independence, whether common-law fairness required disclosure or reasons, and whether Hussain received adequate legal telephone access.

1. Appeals dismissed. The majority held that Article 6 was not engaged at the stage of the governor’s decision or the Segregation Review Boards’ reviews. The prison and young offender institution rules did not expressly confer a right to associate with other prisoners. Association was properly analysed as a normal privilege, withdrawable under the rules. The decisions were administrative exercises of discretion taken in an urgent, complex and potentially dangerous institutional setting.
2. The majority considered that the Strasbourg authorities did not require Article 6 compliance at the initial administrative stage. The relevant dispute arose, at the earliest, when judicial review was commenced. Articles 3 and 8 did not provide an alternative route to Article 6: King’s short confinement did not arguably engage either provision, while the longer segregations might arguably engage Article 8 but were justified and were not determinations of Convention rights.
3. Alternatively, if Article 6 applied, the process as a whole was compliant. The governor and the Boards possessed relevant professional knowledge and experience. The initial decision was short-term and subject to review within 72 hours and periodically thereafter. The Boards included varied personnel, including healthcare, mental-health, chaplaincy, prison-management and Independent Monitoring Board representatives. Judicial review supplied the necessary independent and impartial tribunal through “full jurisdiction”, having regard to the subject matter, the quality of the initial process and the need for expert administrative discretion. Disclosure of sensitive intelligence or use of special advocates was impracticable in this context.
4. The Court of Appeal remained bound by R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58, which held that a prisoner had no legal right to reasons for segregation in every case. Subsequent developments, including the Human Rights Act 1998, did not engage the exceptions in Young v Bristol Aeroplane Company [1944] KB 718. Hussain’s access to telephone legal advice, assessed against PSO1700 and practical demands in the segregation unit, was reasonable and lawful.
5. Lord Justice Elias agreed with dismissal but disagreed on the principal analysis of Article 6. He considered the residual freedom to associate with fellow prisoners a Convention “civil right” and thought that a contestation arose when the internal decision was made. He nevertheless agreed that the prison context, internal safeguards and effective judicial review made the process Article 6 compliant.

• Court of Appeal (Civil Division): The appeals from the Administrative Court were dismissed. The court held that the internal segregation and cellular-confinement procedures were lawful, and that Hussain’s telephone-access challenge failed.
• Administrative Court: King’s application for judicial review was dismissed on 13 October 2010 in [2010] EWHC 2522 (Admin) . The applications by Bourgass and Hussain were dismissed on 18 February 2011 in [2011] EWHC 286 (Admin) .