Fuad Awale, R (on the application of) v Secretary of State for Justice

A prisoner subject to a Prison Rules 1999 rule 46 direction remains removed from association while he is not, in fact, able to associate with other prisoners. The responsible body must therefore review and, where appropriate, renew that removal monthly, even where association has been authorised in principle or the prisoner has contributed to the lack of association.

Procedural fairness requires meaningful reasons and an opportunity to make representations. The Article 8 requirement that an interference be in accordance with the law also requires safeguards against arbitrary use. The public sector equality duty requires reasonable enquiries into whether racist or Islamophobic prisoners disproportionately impede association or progression by Muslim or non-White prisoners.

The claimant was serving a life sentence and had been detained in the close supervision centre estate under rule 46 of the Prison Rules 1999. Except for a six-week period, he had not associated with another prisoner between April 2022 and the hearing, and was confined to his cell for up to 23 hours a day.

He challenged the lawfulness of that situation on four grounds: failure to review and renew removal from association monthly; procedural unfairness through inadequate reasons and opportunities to make representations; incompatibility with Article 8 ECHR; and breach of the public sector equality duty in relation to Muslim and non-White prisoners. The central issues concerned the construction and operation of rule 46 and the adequacy of the governing legal framework.

1. Ground one succeeded. Rule 46(1) contains two distinct aspects: removal from association and placement in a close supervision centre. Rule 46(2), which applies to a direction under paragraph (1), requires monthly review and, where appropriate, renewal of both aspects. No sufficiently clear rule 46(3) direction had been given in this case. In any event, an unimplemented direction to resume association would not remove the duty to review the continuing de facto removal from association.
2. The relevant question is the factual state of affairs. A prisoner is removed from association where he cannot interact with other prisoners outside a cell. The position is not changed by the reason for that state of affairs, including an unreasonable refusal to associate. Sporadic or minimal contact through cell doors did not amount to association. The claimant was therefore unlawfully removed from association, save during the six-week period when he associated with LF.
3. Ground two succeeded. The principles in Bourgass applied with equal force to rule 46 decisions. The claimant was entitled to genuine and meaningful disclosure of the substance of the reasons for continued removal from association, subject to protection of security and other overriding interests, and to a reasonable opportunity to make representations. General references to risk, preferences or lack of suitable associates were inadequate. The reasons for excluding alternative units and potential associates were generally not communicated in a form enabling meaningful representations.
4. Ground three succeeded. Removal from association engaged Article 8. The statutory and policy framework lacked sufficient clarity about how the discretion was to be exercised and did not require meaningful reasons, representations or effective ongoing scrutiny of decisions made within the unit. The interference was therefore not in accordance with the law.
5. Ground five succeeded. The defendant had not made reasonable enquiries into whether the known presence of racist and Islamophobic prisoners disproportionately impeded association or progression by Muslim or non-White prisoners. General equality assessments and multi-disciplinary risk assessments did not discharge the continuing duty under section 149 of the Equality Act 2010.
6. The court granted declaratory relief. The claimant was entitled to an assessment of non-pecuniary damages for the Article 8 violations arising from removal from association, together with appropriate costs.