R v Secretary of State for Justice

Under rule 45 of the Prison Rules 1999, a prison governor may order segregation for no more than 72 hours. Continued segregation requires authority from the Secretary of State, acting through an official outside the prison. Prison governors are independent statutory office-holders for this purpose, so the Carltona principle cannot validate authorisation by a governor or another prison officer.

Before continued segregation is authorised, common law fairness normally requires a meaningful opportunity to make representations and sufficient disclosure of the substance of the case. Disclosure may be limited to the gist where safety, prison security or another overriding interest requires protection. Article 6.1 does not apply merely because segregation is challenged, since prisoners have no precisely defined domestic right to association.

Kamel Bourgass and Tanvir Hussain were segregated in high-security prisons under rule 45 of the Prison Rules 1999. Each remained in solitary confinement for several months. Continued segregation after the first 72 hours was purportedly authorised by senior officers chairing prison Segregation Review Boards under Prison Service Order 1700.

Irwin J dismissed their judicial review claims in [2011] EWHC 286 (Admin). The Court of Appeal dismissed their appeals in [2012] EWCA Civ 376; [2012] 1 WLR 3602. The appellants appealed to the Supreme Court.

The principal questions were whether prison officers could lawfully exercise the Secretary of State’s function of authorising segregation beyond 72 hours; what procedural fairness required before such authorisation; and whether article 6.1 of the European Convention on Human Rights applied.

1. Disposition. The appeals were allowed unanimously. The court declared that each appellant’s segregation beyond the first 72 hours had not been authorised by the Secretary of State and was unlawful.

2. Statutory authority. Rule 45 distinguishes the governor’s function from that of the Secretary of State. The governor may arrange segregation under rule 45(1), but segregation lasting longer than 72 hours requires separate authority under rule 45(2). The legislative structure treats prison governors as independent statutory office-holders exercising powers conferred on them in their own right. They are not constitutionally indistinguishable from the Secretary of State’s departmental officials.

   The Carltona principle therefore did not permit the governor or another officer of the prison to exercise the Secretary of State’s rule 45(2) function. That function provides an independent safeguard against unduly prolonged segregation and must be performed by the Secretary of State personally or, in practice, by an authorised official outside the prison. Prison Service Order 1700 could not lawfully confer it on the operational manager chairing a Segregation Review Board. The decisions affecting both appellants consequently lacked lawful authority.

3. Procedural fairness. Although unnecessary to the disposition, the court held that a prisoner should normally have a reasonable opportunity to make representations before continued segregation is authorised. The prisoner must receive genuine and meaningful information about the substance of the matters relied upon, sufficient to permit an effective response. Primary evidence need not ordinarily be disclosed because the decision concerns operational risk rather than adjudication of a disciplinary charge.

   Where disclosure would create a significant risk to an informant, prison security or another overriding interest, fairness permits information to be given in more general terms. The prisoner must nevertheless receive the gist of the reasons. The Court of Appeal’s contrary approach in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] AC 58 could not be sustained.

4. Article 6 and judicial review. Continued segregation does not determine a precisely defined domestic right to association. Its authorisation therefore falls outside article 6.1. In any event, judicial review provides jurisdiction suited to the evaluative nature of the decision. The court may examine the applicable test, relevant factors, procedural fairness and the reasonableness of the assessment. Because prolonged segregation can have grave consequences, a cogent justification is required.

• United Kingdom Supreme Court: In R v Secretary of State for Justice [2015] UKSC 54, the court unanimously allowed the appeals and declared the segregation beyond 72 hours unlawful.
• Court of Appeal: The appeals were dismissed in [2012] EWCA Civ 376; [2012] 1 WLR 3602.
• High Court, Administrative Court: Irwin J dismissed both applications for judicial review in [2011] EWHC 286 (Admin).