Bourgass and Hussain v Secretary of State for Justice

The appeals concerned the lawfulness of prolonged segregation (removal from association/solitary confinement) of two prisoners under rule 45 of the Prison Rules 1999. The Court held that rule 45(2) requires the authority of the Secretary of State for any removal from association beyond the initial 72 hours, and that the Prison Service Order (PSO 1700) and the practice of authorising continued segregation by the operational manager chairing a Segregation Review Board was unlawful. The Carltona principle does not permit the governor or other prison officers to be treated as the Secretary of State for the purposes of rule 45(2).

Although the Court dealt with procedural fairness and article 6 issues, it determined the appeals on the statutory-authorisation point: segregation beyond 72 hours must be authorised by the Secretary of State (or an authorised officer external to the prison); the PSO’s purported authorisation of operational managers was invalid, so the appellants’ continued segregation was unlawful.

The two appellants, Bourgass and Hussain, were held in high security prisons and kept in segregation for extended periods (each beyond the 72 hour period permitted without higher authority). They sought judicial review challenging the lawfulness of their continued segregation. The Secretary of State relied upon rule 45 of the Prison Rules 1999 and upon PSO 1700 which provided for Segregation Review Boards chaired by an operational manager who purported to authorise continuations of segregation.

Nature of the claim: applications for judicial review seeking declarations that continued segregation beyond 72 hours lacked lawful authority.

Procedural and appellate history: the applications were heard by Irwin J (dismissed: [2011] EWHC 286 (Admin)); the Court of Appeal dismissed the appeals ([2012] EWCA Civ 376); the appellants appealed to the Supreme Court.

Issues framed by the court:

• Whether decisions to continue segregation beyond 72 hours were lawfully authorised under rule 45(2) of the Prison Rules 1999;
• whether the Carltona principle meant that decisions by governors or operational managers could be treated as decisions of the Secretary of State;
• whether the PSO lawfully authorised operational managers to give the Secretary of State’s authority;
• what procedural fairness (including disclosure and opportunity to make representations) is required before continued segregation is authorised; and
• whether article 6(1) ECHR applies so as to require a hearing before an independent tribunal or whether judicial review suffices.

Court’s reasoning: The Court examined the statutory framework (Prisons Act 1952 and the Rules) and relevant authorities (including Leech, Hague and Somerville). It concluded that prison governors are statutory office-holders distinct from the Secretary of State and that rule 45(2) is intended as a prisoner-protecting safeguard requiring the authority of the Secretary of State (or officers independent of the prison management). The Carltona principle therefore does not allow a governor or operational manager to exercise the Secretary of State's function under rule 45(2). The PSO’s provision purporting to authorise operational managers to give that authority was unlawful. Having reached that conclusion, the Court declared that the appellants’ segregation beyond 72 hours was not authorised and was unlawful. The Court also set out the common law requirements of procedural fairness: prisoners should normally be given a meaningful opportunity to make representations and sufficient disclosure of the gist of reasons for seeking authorisation, subject to legitimate security constraints. On article 6(1), the Court concluded that decisions under rule 45(2) do not, in general, fall within article 6(1) but that judicial review provides suitable safeguards and, in practice, will meet article 6.1’s requirements where applicable.

Appeal allowed. The Court held that authorisation under rule 45(2) of the Prison Rules 1999 for segregation beyond 72 hours must be given by the Secretary of State (or by officials properly constituting the Secretary of State’s decision) and cannot lawfully be performed by a governor or by an operational manager chairing an SRB under PSO 1700. The PSO’s purported authorisation of prison operational managers was unlawful, so the appellants’ continued segregation beyond 72 hours was unauthorised and unlawful. The Court also clarified common law procedural fairness obligations and considered article 6(1) issues, but these were not decisive of the appeals.

First-instance judicial review dismissed by Irwin J: [2011] EWHC 286 (Admin). Appeals dismissed by the Court of Appeal: [2012] EWCA Civ 376; appeal to the Supreme Court allowed: [2015] UKSC 54.