Shahid v Scottish Ministers

Under Rule 94(5) of the Prisons and Young Offenders Institutions (Scotland) Rules 2006, segregation beyond 72 hours is lawful only if ministerial written authority is granted before that period expires. A late authority is invalid and incapable of renewal. A renewal under Rule 94(6) may, however, be granted within a reasonable period if the underlying authority remains valid.

Segregation interferes with private life under article 8. The state must prove that it is lawful, pursues a legitimate aim and is proportionate. Statutory decisions must be made independently by the designated decision-maker. Prolonged segregation requires increasingly compelling reasons, rigorous review of alternatives and active planning towards a sustainable solution.

Even exceptionally lengthy segregation does not necessarily breach article 3. Its conditions, stringency, duration, purpose and effects must be assessed together.

The appellant spent 56 months in segregation in Scottish prisons because the authorities reasonably feared that other prisoners would attack him. He sought judicial review, alleging that periods of segregation lacked authority under the applicable Prison Rules and violated articles 3 and 8 of the European Convention on Human Rights. He also sought damages under the Human Rights Act 1998.

The Lord Ordinary refused the application: [2011] CSOH 192; 2012 SLT 178. The Extra Division refused the appeal: [2014] CSIH 18A; 2014 SC 490.

The Supreme Court considered whether ministerial authorities and renewals issued after prescribed time limits were valid; whether local prison managers had unlawfully deferred to a non-statutory committee; whether the conditions and duration of segregation violated articles 3 or 8; and whether damages were necessary as just satisfaction.

1. Appeal allowed unanimously. Lord Reed delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agreed. The court declared that specified periods totalling about 14 months lacked lawful authority and that the circumstances of the appellant's segregation violated article 8.

2. Rule 94(5) made prior ministerial authority a precondition to segregation beyond the initial 72 hours. Its language expressly stated the consequence of non-compliance. Purposive interpretation could not displace that plain consequence. Authorities concerned with legislation which left the consequence of delay unstated were distinguishable. The three late initial authorities were invalid and could not be renewed. By contrast, Rule 94(6) imposed no express deadline for renewing an existing valid authority, although renewal had to occur within a reasonable period.

3. A statutory decision-making power must be exercised independently by the person to whom it is entrusted. The documents established that some local managers treated decisions of the non-statutory Executive Committee for the Management of Difficult Prisoners as binding, rather than advisory. Their applications were therefore invalid. A subsequent ministerial decision could not cure the absence of a lawful application.

4. Segregation interfered with private life under article 8 and required justification. Its protective purpose was legitimate. Periods lacking valid authority, and periods founded on decisions which local management had not made independently, were not in accordance with law. Prolonged segregation also required rigorous proportionality review. The longer it continued, the greater the necessary justification and the more closely the court had to examine whether it was the only practicable means of addressing the risk.

5. The Ministers failed to prove proportionality. Although the risk of attack was genuine, no meaningful reintegration or long-term management plan was produced until the appellant had spent about 55 months in segregation. Other locations and transfer elsewhere in the United Kingdom had not been adequately considered. The absence of evidence of serious management efforts for four and a half years meant that the burden of justification was not discharged.

6. Article 3 was not violated. The isolation was partial, its purpose was protective, the physical conditions respected human dignity, and no severe or permanent injury was established. The exceptional duration and deficiencies in purposeful activity did not, when assessed with the remaining circumstances, attain the required minimum severity.

7. Breach of Rule 94 did not itself confer a right to damages. Under section 8 of the Human Rights Act 1998, damages were unnecessary because prejudice from the procedural breaches and serious or permanent injury had not been proved. Declaratory relief and an award of costs provided just satisfaction. The court invited submissions concerning expenses in the Court of Session.

• United Kingdom Supreme Court: The appeal was allowed unanimously. The court granted declarators that specified periods of segregation were unauthorised and that article 8 had been violated: [2015] UKSC 58.
• Inner House of the Court of Session, Extra Division: The appeal from the Lord Ordinary was refused: [2014] CSIH 18A; 2014 SC 490.
• Outer House of the Court of Session: Lord Malcolm refused the application for judicial review: [2011] CSOH 192; 2012 SLT 178.