Syed v The Secretary of State for Justice

“Removal from association” under rules 45 and 46 of the Prison Rules means removal from all association with other prisoners. It does not mean removal from normal association with the mainstream prison population. An authorisation may remain operative while limited association is permitted as part of a flexible and reviewed regime.

Removal from association, including a regime falling short of complete segregation, may interfere with the right to respect for private life under article 8(1) of the European Convention on Human Rights. The court must examine the nature, duration and context of the restrictions. Restrictions exceeding those inherent in lawful detention require justification under article 8(2).

A prisoner challenged the decision to transfer him from segregation to the Managing Challenging Behaviour Strategy Unit at HMP Woodhill. The High Court allowed his judicial review claim on procedural grounds and under article 8 of the European Convention on Human Rights, but held that the unit’s regime was not a “removal from association” under rule 45 of the Prison Rules: [2017] EWHC 727 (Admin).

The prisoner appealed on the construction of rule 45. The Secretary of State cross-appealed against the finding that article 8(1) was engaged. The central questions were whether limited association within the unit amounted to removal from association and whether confinement for between 20¾ and 21½ hours daily over more than four months interfered with private life.

1. Both the appeal and cross-appeal were dismissed. Haddon-Cave LJ delivered the judgment, with which Hamblen LJ and Sir Terence Etherton MR agreed.

2. The ordinary meaning of “removal from association” in rule 45(1) of the Prison Rules is removal from all contact with other prisoners. “Removal” does not mean a mere reduction or limitation. The expression is synonymous with segregation or solitary confinement. There was no warrant for inserting “normal” so as to make the provision refer to association with the mainstream prison population.

3. The same meaning of “association” applies throughout rules 45 and 46. Those rules operate as authorisation provisions. They permit complete removal from association where desirable, while rules 45(3) and 46(3) allow limited association to resume. An authorisation may therefore continue while small-group association is allowed to monitor and respond to improvements in the prisoner’s circumstances. That construction accords with the language and purpose of the rules and permits a workable prison regime.

4. The prisoner’s transfer to the unit did not constitute removal from association. The unit permitted limited interaction with other prisoners and was materially different from complete segregation. The prisoner’s appeal on rule 45 was therefore dismissed.

5. Following R (AB) v Secretary of State for Justice [2019] EWCA Civ 9, article 8(1) of the European Convention on Human Rights can apply to prison regimes involving removal from association. Restrictions exceeding those inherent in lawful detention may interfere with private life even where they fall short of complete segregation. Their nature, duration and context must be assessed.

6. The unchallenged findings established that the prisoner was locked in his cell for between 20¾ and 21½ hours each day for more than four months, with limited association and initially no activities outside the unit. Those restrictions sufficiently interfered with private life to engage article 8(1). Although they pursued a legitimate objective and were proportionate, the procedural defects meant that the interference was not in accordance with law under article 8(2). The Secretary of State’s cross-appeal was accordingly dismissed. The High Court’s decision to award no damages remained undisturbed.

1. Court of Appeal (Civil Division): In [2019] EWCA Civ 367, the court unanimously dismissed the prisoner’s appeal on rule 45 of the Prison Rules and the Secretary of State’s cross-appeal on article 8(1) of the European Convention on Human Rights.
2. High Court, Queen’s Bench Division: In [2017] EWHC 727 (Admin), Lewis J quashed the transfer decision for procedural defects. He held that the regime was not a removal from association under rule 45, but that it interfered with private life under article 8(1). The interference was proportionate but not in accordance with law, and no damages were awarded.