Shahid v Scottish Ministers

The Supreme Court allowed the appeal. The court held that the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (in particular rule 94(5) and rule 94(6)) require that ministerial authority to continue segregation beyond the initial 72 hours must be granted prior to the expiry of that 72 hour period, and that a late authorisation cannot lawfully validate the intervening period. As a result three ministerial authorisations were invalid and a number of subsequent renewals were ineffective, producing periods of unauthorised segregation totalling about 14 months. The court also held that some decisions by local prison management did not represent an independent exercise of the statutory power conferred on governors because they simply implemented or deferred to decisions taken by the non‑statutory Executive Committee for the Management of Difficult Prisoners (ECMDP); that failure to exercise the conferred decision‑making function lawfully breached article 8 ECHR. The court found no violation of article 3, and awarded declarators and costs rather than damages.

Background and parties: The appellant was convicted in 2006 of a notorious racially aggravated murder and spent 56 months in segregation. He brought judicial review proceedings seeking declarators that periods of his segregation were contrary to the Prison Rules and breaches of his Convention rights under articles 3 and 8 ECHR, together with damages under section 8 of the Human Rights Act 1998. The Scottish Ministers admitted that the nature of the crime did not justify a breach of Convention rights.

Procedural history: The appellant first sought legal aid in 2007 but it was granted only in 2010. The Lord Ordinary refused the application on 18 November 2011 ([2011] CSOH 192; 2012 SLT 178). An Extra Division refused permission to appeal on 31 January 2014 ([2014] CSIH 18A; 2014 SC 490). The matter was then brought to the Supreme Court ([2015] UKSC 58).

Nature of claim and issues: (i) The appellant sought declarations and damages under section 8 HRA 1998 for alleged breaches of the Prison Rules and articles 3 and 8 ECHR. (ii) The court identified the principal issues as (a) the proper construction and legal effect of rule 94(5) and rule 94(6) of the 2006 Rules and whether late ministerial authorisations or late renewals could lawfully validate segregation beyond 72 hours; (b) whether segregation in the circumstances violated article 3 or article 8; and (c) whether local governors exercised the statutory powers conferred on them independently or unlawfully deferred decision‑making to the ECMDP.

Court’s reasoning: On statutory construction the court held that rule 94(5) plainly makes ministerial authority a pre‑condition to lawful segregation beyond 72 hours and that such authority must be granted prior to the expiry of that period. Rule 94(6) shows that a valid authority takes effect from the expiry of the initial 72 hours, so a late authority cannot operate retrospectively to authorise segregation already exceeding 72 hours. Thus three late authorisations were invalid and could not be validly renewed, producing about 14 months of segregation without rule‑based authorisation. The court declined to override that plain meaning by purposive construction because the text coheres with the purpose of providing an external safeguard for prisoners.

The court held that some decisions by local management were not the independent exercise of the statutory power because the documentary record showed that management implemented or awaited ECMDP decisions. A statutory decision must be taken by the person to whom the power is conferred; the delegation or deference in practice therefore breached article 8. On article 3, the court concluded that the appellant’s conditions and regime did not attain the minimum level of severity required for an article 3 violation: segregation was partial, monitored, and not such as to cause severe or permanent injury. On article 8 the court concluded there were breaches both in the periods when segregation lacked valid authorisation and by reason of the failure properly to exercise the governor’s decision‑making function; on proportionality the Ministers had not shown that the very prolonged segregation was justified in the absence of any meaningful integration plan for most of the period.

Remedy: The court granted declarators identifying the specific periods of unlawful segregation and that the appellant’s article 8 rights were violated, awarded costs and invited submissions on expenses. It declined to award damages, concluding a declarator and costs provided just satisfaction on the facts.

Appeal allowed. The court held that under rule 94(5) ministerial authority to continue segregation beyond 72 hours must be granted prior to the expiry of that period and that late authorisations (and renewals dependent upon them) were invalid. Certain periods of segregation were therefore unauthorised and, coupled with local managers’ failure to exercise their statutory decision‑making independently (deferring to ECMDP), the appellant’s article 8 rights were violated. Article 3 was not breached. The appropriate relief was declaratory relief and costs rather than an award of damages.

[2011] CSOH 192; 2012 SLT 178 (Lord Ordinary refused application); appeal refused by Extra Division [2014] CSIH 18A; appeal to the Supreme Court allowed [2015] UKSC 58.