Kevan Thakrar v The Secretary of State for Justice

Continued segregation of a prisoner under Prison Rule 46 is fact-sensitive. The court must assess all relevant circumstances, including the reasons for segregation, risk, available alternatives, duration, conditions, contact with others, medical evidence and the prisoner’s physical and mental health. Duration alone does not establish a breach of Article 3.

Segregation must remain necessary, proportionate and supported by adequate reasons. A prisoner’s refusal to engage with risk assessment may be relevant where assessment is necessary to determine whether segregation can safely end. Passive refusal may have the same practical effect as active refusal. Procedural unlawfulness arose because the decision-making body included acting governors rather than properly authorised representatives of the Secretary of State.

The claimant, a life prisoner held in the close supervision centre estate, challenged his continuing removal from association and placement in a designated cell under Prison Rule 46. He alleged breaches of Articles 3, 8 and 14 of the Convention, inadequate reasons, failure to follow the applicable operating manual, and unlawfulness in the use of passive refusal as a basis for segregation.

The original decision to place him under Prison Rule 46 was not challenged. The issues therefore concerned the continuing justification and review of the segregation, the adequacy of the reasons given, the lawfulness of the policy, and the constitution of the reviewing decision-making body. The court also considered the subsequent decision in R (Awale) v SSJ [2024] EWHC 2322 (Admin).

1. Article 3. The claimant failed to establish, beyond reasonable doubt, that the continuing segregation reached the minimum level of severity required by Article 3. The assessment was fact-specific and included the duration and conditions of detention, the degree of isolation, risks to staff, prisoners and the public, available alternatives, the purpose of the measure, vulnerability, medical and psychiatric support, family contact and the effect on health.
2. There is no universal time limit at which lawful segregation becomes unlawful. Passage of time is relevant, but must be evaluated with the other circumstances. Continued segregation must remain necessary, proportionate and justified by progressively adequate reasons. Contact with prison staff, health professionals, lawyers, family, clerics and independent monitors may mitigate social isolation.
3. The prison authorities were entitled to take the claimant’s acquittal and the underlying incident into account in risk assessment. Segregation decisions are management and security decisions, not disciplinary proceedings or determinations of criminal guilt. A prisoner’s refusal to engage with assessment may prevent risk from being assessed and may therefore support continued segregation where that assessment is necessary.
4. The policy ground failed. The reference to passive refusal did not make the policy unlawful. Passive refusal may prevent completion of a necessary risk assessment in the same way as active refusal, and continued segregation is not disproportionate where there remains a lawful basis for placement and the refusal prevents safe assessment.
5. The reasons challenge failed. The claimant had been given the substance of the reasons for his placement and continuing segregation through the initial reasons letter, periodic reviews, weekly reports, monthly reports and quarterly care and management reviews.
6. Following R (Awale) v SSJ [2024] EWHC 2322 (Admin), placement in a close supervision centre and removal from association are distinct matters requiring review. On the evidence, the claimant’s designated-cell placement had in fact been separately considered.
7. The claimant succeeded under Article 8 because the decisions were not taken in accordance with proper procedure. The reviewing committee included acting governors, although R (Bourgass) v SSJ [2015] UKSC 54 required the relevant decision to be made by the Secretary of State or properly authorised representatives. Declaratory relief was granted. The claimant did not otherwise establish the substantive Article 8 or Article 14 complaints.

First-instance judicial review. Permission had been granted by Ritchie J on six grounds, with renewal sought on a seventh ground. The court also permitted limited further submissions concerning R (Awale) v SSJ [2024] EWHC 2322 (Admin).