Dennehy, R (On the Application Of) v Secretary of State for Justice

Prolonged prisoner segregation must remain lawful, procedurally fair and justified by the particular circumstances. Article 3 imposes a fact-sensitive minimum-severity threshold. Duration is relevant but no fixed period determines a breach. Article 8 applies to prisoner segregation, requiring justification under Article 8(2), including legality and proportionality. Regular review, meaningful reasons, monitoring, consideration of alternatives and access to judicial review are important safeguards. A court reviewing continued segregation must assess the reasonableness of the evaluative judgment in context and require cogent justification where the consequences are serious. A prior period of segregation was unlawful because it lacked the authorisation required by the Prison Rules 1999, but the continuing segregation was otherwise lawful and proportionate.

The claimant was a whole-life prisoner held in segregation at a privately managed prison. The defendants accepted that segregation between 21 September 2013 and 4 September 2015 had not been authorised in accordance with rule 45 of the Prison Rules 1999, following R (Bourgass) v Secretary of State for Justice [2016] AC 384. The claimant challenged her continued segregation on grounds of procedural unfairness, breaches of Articles 3, 8 and 14, irrationality and entitlement to damages. The central issues were whether the regime was lawfully authorised, procedurally fair, compatible with the Convention rights and reasonable at common law.

1. Authorisation. The defendants’ concession was accepted. The claimant’s segregation from 21 September 2013 to 4 September 2015 was unlawful because it lacked the authorisation required by rule 45 of the Prison Rules 1999. A declaration was granted.
2. Procedural fairness. Applying R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, R (Osborn) v Parole Board [2014] AC 115 and Bourgass, the claimant was entitled to a reasonable opportunity to make representations and to know the substance of the case for continued segregation. On the facts, she knew the substance of the escape allegations, attended review meetings and was informed that continued segregation was based principally on assessed risks to others. There was no procedural unfairness.
3. Article 3. The threshold under Article 3 was fact-sensitive. No fixed duration determines a breach. The court considered the conditions, degree of isolation, legitimate purpose, monitoring, effects, availability of alternatives, regular review and procedural safeguards. The regime was not total isolation, had a legitimate safety aim, was medically monitored, regularly reviewed and supported by structured reintegration efforts. It did not amount to inhuman or degrading treatment.
4. Article 8. Article 8(1) applied to prisoner segregation. The interference had legitimate aims and was necessary and proportionate. It was unlawful only during the period when domestic authorisation was absent. No additional declaration or damages were required.
5. Article 14 and irrationality. The claimant was not treated differently because of disability, and her mental health had been taken into account. Applying the contextual approach to reasonableness in Pham v Secretary of State for the Home Department [2015] 1 WLR 1591 and Bourgass, there was cogent justification for continued segregation.
6. The claim was dismissed, save for the declaration concerning the period of unlawful authorisation.

This was a first-instance judicial review. Permission was granted by Collins J on 15 October 2015, with permission later extended to include the grounds advanced in the claimant’s skeleton argument. The claim was dismissed by the High Court, subject to a declaration concerning the earlier unlawful authorisation.