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

The court considered a judicial review challenge to the prolonged segregation (removal from association) of a woman prisoner subject to a whole life order. The decision applies rule 45 of the Prison Rules 1999 (and its post-Bourgass amendments), the Human Rights Act 1998 (Articles 3, 8 and 14) and common law standards of reasonableness. The defendants conceded that segregation between 21 September 2013 and 4 September 2015 was unlawful because it lacked the required Secretary of State authorisation under the pre-Bourgass Prison Rules; the court granted a declaration to that effect. The court rejected submissions that segregation breached procedural fairness, Article 3 (inhuman or degrading treatment), Article 8 (other than the narrow unlawfulness already conceded for the pre-September 2015 period), Article 14 (discrimination on grounds of disability) or the common-law irrationality ground, concluding the segregation thereafter was authorised, necessary, proportionate and kept under regular professional review.

The claimant, a woman prisoner at HMP Bronzefield subject to a whole life order, had been held in segregation (removal from association) from 19 September 2013. She sought judicial review challenging the lawfulness of that segregation on multiple grounds including lack of authorisation under the Prison Rules 1999 rule 45, breach of procedural fairness, breach of Articles 3, 8 and 14 of the Convention rights (as incorporated by the Human Rights Act 1998), and common-law irrationality.

Procedural and factual background:

• Both defendants conceded the segregation was unlawful between 21 September 2013 and 4 September 2015 because it lacked proper Secretary of State authorisation, following the Supreme Court's decision in R (Bourgass) v Secretary of State for Justice.
• After Bourgass the Prison Rules and PSO 1700 were amended; under the revised scheme Secretary of State functions were discharged by appropriate departmental officials (DDC reviews) and further procedural safeguards were introduced.
• The claimant had a complex mental health profile, had been on open ACCT plans at times, and presented an assessed and significant risk to others. The prison developed a phased reintegration plan and considered transfer options (including the Primrose Project and a Highly Complex Needs Pilot).

Issues framed by the court:

1. Whether the segregation had been lawfully authorised under the Prison Rules;
2. Whether segregation breached the duty to act fairly;
3. Whether segregation breached Article 3;
4. Whether segregation breached Article 8;
5. Whether segregation breached Article 14; and
6. Whether segregation was unlawful at common law as irrational.

Court’s reasoning and conclusions:

• The court accepted the concession that segregation from 21 September 2013 to 4 September 2015 did not comply with rule 45 and was therefore unlawful; it was appropriate to grant a declaratory remedy to record that fact.
• On procedural fairness the court applied authority requiring meaningful reasons and an opportunity to make representations. The claimant was informed of the substance of the concerns (initially an alleged escape plan and subsequently assessed high risk to others), attended most Segregation Review Board meetings, and had the opportunity to respond; the court found no unfairness on the facts.
• On Article 3 the court applied Strasbourg and domestic authorities (including Ahmad, Ramirez-Sanchez, Keenan and Shahid) and concluded that segregation did not amount to inhuman or degrading treatment: it was not total sensory or social isolation, the claimant had access to activities and professional monitoring, and segregation pursued legitimate aims and was proportionate in the circumstances.
• Regarding Article 8 the court concluded Article 8(1) applied to segregation but the only breach was the earlier period of unlawful authorisation (conceded by the defendants); thereafter segregation complied with domestic law and was necessary and proportionate.
• On Article 14 the court rejected the discrimination claim: the claimant was not treated less favourably because of disability and her mental health had been taken into account in ongoing reviews.
• On common-law irrationality the court applied the modern, context-sensitive review principles (Pham, Kennedy, Bourgass) and found the continued segregation was reasonable and supported by cogent justification and regular review.

The court therefore dismissed the judicial review claim save for granting a declaration recording the conceded unlawfulness of segregation between 21 September 2013 and 4 September 2015.

The claim for judicial review is dismissed, save that the court granted a declaration that the claimant’s segregation was unlawful for the period 21 September 2013 to 4 September 2015 because it was not authorised under rule 45 of the Prison Rules as they then stood. The court reached this outcome because the defendants conceded the pre-September 2015 unlawfulness, and on the facts and authorities the court found no breach of procedural fairness, Article 3, Article 14, or common-law irrationality, and the post-September 2015 segregation was in accordance with law and proportionate under Article 8.