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

The court held that Rule 46 Prison Rules 1999 must be read and applied so that where a prisoner is in fact deprived of association the Secretary of State (acting by the Close Supervision Centre Management Committee) must review and, if appropriate, renew the Rule 46(1) direction at monthly intervals under Rule 46(2). A purported or theoretical direction under Rule 46(3) that association may resume does not displace the duty to review while that direction has not been implemented in practice.

The court further held that the common law duty of procedural fairness requires meaningful reasons sufficient to enable a prisoner to make representations about continued removal from association, applying the principles in Bourgass. The Claimant was not provided with adequate reasons for prolonged de facto segregation.

Article 8 ECHR was engaged. Because the defendant failed to give required reviews and reasons, and because the Close Supervision Centre Operating Manual lacked adequate procedural safeguards, the Claimant's removal from association since 13 April 2022 (except for a six‑week period) was not "in accordance with the law" for the purposes of Article 8. Finally the Secretary of State also breached the public sector equality duty in s.149 Equality Act 2010 by failing to make reasonable enquiries about whether the presence of a cohort of racist/Islamophobic prisoners disadvantaged Muslim or non‑White prisoners.

The claimant is a long‑term life‑sentenced prisoner placed within the Close Supervision Centre (CSC) estate and subject to a direction under Rule 46 of the Prison Rules 1999. He challenged the circumstances of his detention by judicial review, seeking declarations and relief that his prolonged confinement to his cell (up to 22–23 hours daily save for a six‑week association period) was unlawful. The claim advanced four primary grounds: (1) failure to review and renew the Rule 46(1) direction monthly as required by Rule 46(2); (2) denial of procedural fairness and of meaningful reasons enabling representations about continued segregation; (3) incompatibility with Article 8 ECHR and the Human Rights Act 1998 where the statutory and policy regime lacked adequate safeguards; and (5) breach of the public sector equality duty (PSED) in s.149 Equality Act 2010.

Background facts: the claimant was convicted of two murders in 2013 and later involved in a staff hostage incident; he has been managed within the CSC/Designated Cell system across several prisons. From April 2022 (except 29 January–16 March 2023) he had little or no association with other prisoners. The prison authorities relied on multi‑disciplinary processes (DRAMs, CMG, CSCMC) and operational constraints (small estate, risk assessments, counter‑terrorism considerations) to justify non‑association and explained some reasons to the claimant in general terms.

Issues before the court:

• Whether Rule 46(2) required monthly review/renewal of a direction to remove a prisoner from association where the prisoner was in fact deprived of association;
• whether the claimant had been given adequate reasons and a fair opportunity to make representations about continued segregation;
• whether the domestic regime and policy were "in accordance with the law" under Article 8(2) ECHR; and
• whether the Secretary of State had complied with the PSED in s.149 EqA by considering whether the presence of racist/Islamophobic prisoners disadvantaged Muslim or non‑White prisoners.

Court's reasoning and conclusions:

• On construction of Rule 46 the court emphasised that the rule governs a state of affairs (actual ability to associate) and that a Rule 46(3) direction which has not been implemented does not displace the monthly review obligation under Rule 46(2). The CSCMC had not reviewed or renewed the Claimant's removal from association monthly and therefore Ground One succeeded.
• Applying Bourgass and Doody, the court found the Claimant had not been provided with reasons sufficient to enable meaningful representations about the prolonged de facto removal from association; Ground Two succeeded.
• Article 8 was engaged. Because of the failures to review and to provide adequate reasons and because the CSC Operating Manual lacked procedural safeguards (for example, no required reasons or prisoner involvement for DRAM decisions about association), the interference was not "in accordance with the law" and Ground Three succeeded.
• On the PSED the court found the Secretary of State had not made adequate enquiries about whether a cohort of racist/Islamophobic prisoners in the CSC placed Muslim or non‑White prisoners at a particular disadvantage. The existing equality impact assessments and monitoring did not address the specific issue and the decision not to enquire further was irrational; Ground Five succeeded.

Remedy: the court granted declaratory relief (including declarations that placement in the CSC during certain periods breached Article 8 because of the CSCMC composition, that removal from association from 13 April 2022 to the hearing date save for 29 January–16 March 2023 was not in accordance with law, and that the PSED was breached) and ordered assessment of non‑pecuniary damages and costs to be determined if not agreed.

The claim succeeded. The court (Ellenbogen J.) held that Rule 46(2) requires monthly review/renewal of a Rule 46(1) direction so long as the prisoner is in fact deprived of association, that the Claimant was, for the periods in issue (13 April 2022 to the hearing except 29 January–16 March 2023), removed from association and that the CSCMC did not carry out the required monthly reviews. The court further held that the common law and Bourgass require meaningful reasons to enable representations in relation to continued segregation and that the Claimant had not been given adequate reasons. Article 8 ECHR was therefore engaged and the interference was not "in accordance with the law"; the court also found a breach of the public sector equality duty (s.149 Equality Act 2010) for failure to make reasonable enquiries about the impact of a cohort of racist/Islamophobic prisoners. Declarations were granted and an assessment of non‑pecuniary damages and costs was ordered if not agreed.