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

“Removal from association” under rules 45 and 46 of the Prison Rules 1999 means ending a prisoner’s opportunity to leave his cell and interact with other prisoners. A reduction in the number of prisoners, the duration of association, or the location of association does not by itself amount to removal. Restrictions within a specialist prison unit may nevertheless interfere with private life under Article 8(1) ECHR where, having regard to their context, duration, nature and effects, they go beyond the ordinary incidents of lawful detention. Such interference must pursue a legitimate aim, be necessary and proportionate, and be in accordance with law. A procedurally defective decision is unlawful even where the underlying placement is substantively justified.

The claimant, a life prisoner convicted of an offence preparatory to terrorism, challenged the decision to transfer him from segregation to a Central Managing Challenging Behaviour Strategy Unit at HMP Woodhill. He argued that the Unit’s restricted regime amounted to removal from association under rules 45 and 46 of the Prison Rules 1999, and interfered unjustifiably with his Article 8 rights.

The defendant accepted that the transfer decision was procedurally unlawful because the claimant had not been given an opportunity to make representations on transfer to the Unit under the current policy. The court therefore considered whether the regime amounted to removal from association, whether it interfered with private life, and whether any interference was justified.

1. Removal from association. The claim that the Unit regime constituted removal from association under rule 45 failed. “Associate with other prisoners” refers to the ability to have contact and interact with prisoners outside the cell. “Removal from association” means bringing that state of affairs to an end. It does not mean reducing the hours of association, changing the number or identity of prisoners, or moving the prisoner to a different part of the prison.
2. The structure of rule 46 supported that construction. Rule 46(3) contemplates that association may resume within a close supervision centre, even though the prisoner may associate with a different and smaller group in a different location. A specialist unit may therefore provide association without replicating the regime of a normal wing.
3. Article 8. The restrictions in the Unit, considered in their context, duration, nature and effects, went beyond the ordinary restrictions inherent in lawful detention. They therefore constituted an interference with private life under Article 8(1) ECHR.
4. The restrictions pursued the legitimate aim of protecting the safety and lives of others. Applying the approach in R (Bourgass) v Secretary of State for Justice [2016] A.C. 384, the court considered the risks, the information available, the claimant’s explanations, the alternatives, and the consequences for the claimant and others. The placement in the Unit was cogently justified, necessary and proportionate. There was no realistic less restrictive alternative.
5. Nevertheless, the interference was not in accordance with law. The claimant had not been given an opportunity to comment on transfer to the Unit, as distinct from transfer to a close supervision centre, and the current transfer policy had not been published or provided to him. The decision of 22 September 2016 was therefore unlawful and was quashed.
6. The matter had to be reconsidered in light of any representations by the claimant and all up-to-date information. The claim concerning inadequate reasons was academic and was not determined. The finding of an Article 8 violation provided just satisfaction; no declaration or damages were necessary.