Denny De Silva, R (on the application of) v The Secretary of State For Justice

A decision to place or retain a prisoner in a separation centre is highly significant and attracts substantial procedural fairness. Where disputed allegations of past conduct could affect an assessment of future risk, the decision-maker must, so far as reasonably practicable, explore the allegations and surrounding circumstances and make such factual findings as it can. It cannot simply assume disputed allegations to be true.

In an appropriate case, fairness may require an oral hearing, particularly where material facts are disputed, expert evidence points against the proposed decision, and the case is difficult or unusual. Adequate reasons must address the principal controversial issues. A separation-centre decision engages Article 8 where its restrictions go beyond those ordinarily consequent on imprisonment.

The claimant, a Category B life-sentence prisoner, challenged the decision of the Separation Centre Management Committee to retain him in a separation centre under rule 46A of the Prison Rules 1999. He alleged failures to consider his representations, resolve material factual disputes, obtain reliable intelligence information, provide an oral hearing, give adequate reasons and comply with Article 8 ECHR.

The court considered the significance of separation-centre detention, the committee’s risk-assessment function, the relevance of disputed allegations and intelligence gradings, the adequacy of the procedure and reasons, and the effect of inappropriate psychological comments made during the decision-making meeting.

The claim succeeded on grounds 4(i), 4(ii), 5, 3, 6(i) and 7. Grounds 2, 1(i) and 1(ii) failed.

1. Representations and factual disputes. The committee failed to consider the claimant’s detailed representations. This breached the policy requirement to consider relevant material and the Tameside duty to make sufficient inquiry. Where allegations of past conduct could affect a rule 46A risk assessment, the committee was required, so far as it could on the available or obtainable information, to explore the allegations and surrounding circumstances and make such findings as it could. It could not proceed on an assumption that disputed allegations were true.
2. Authorities and factual assessment. The approach in Pearce and CAAT applied to the committee, notwithstanding that it was a prison-management body rather than a judicial body. The observations in Bourgass that segregation decisions normally do not require factual determinations were obiter and did not justify a different result. The complexity of the material did not remove the duty.
3. Oral hearing. Fairness required an oral hearing. The material factual disputes, the significant disagreement between the professional reports and the majority decision, and the unusual and difficult nature of the case made oral representations necessary for fair disposal.
4. Reasons and improper comment. The decision letter did not explain what view had been taken of the claimant’s representations. Ground 6(i) therefore succeeded. The reasons were nevertheless adequate in relation to the views of Dr Bennett and Mr Vipond. Inappropriate comments by Professor Al-Attar about psychopathy and personality disorder were made at important stages, were materially connected with the issues for decision and could not safely be treated as irrelevant. They rendered the decision irrational and/or unreasonable.
5. Article 8. Separation-centre detention engaged Article 8 because its restrictions materially exceeded those ordinarily consequent on imprisonment. The procedural and substantive errors meant that the interference was not in accordance with law. The court did not determine necessity or proportionality, but identified the matters requiring consideration on any future decision, including less restrictive alternatives and known relevant medical considerations under rule 46A(5).

The parties agreed a timetable for further submissions on relief.