Kevan Thakrar, R (on the application of) v Secretary of State for Justice [2026] EWCA Civ 503

[2026] EWCA Civ 503

Case No CA-2025-000427

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT (KING’S BENCH DIVISION)

ADMINISTRATIVE COURT

MRS JUSTICE MCGOWAN DBE

AC-2022-LON-001883

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24 April 2026

Before

LORD JUSTICE BEAN

(Vice-President, Court of Appeal, Civil Division)

LORD JUSTICE BAKER

LADY JUSTICE MAY

Between

THE KINGAppellant

on the application of:Appellant

KEVAN THAKRARAppellant

SECRETARY OF STATE FOR JUSTICERespondent

Nick Armstrong KC and Aidan Wills (instructed by Reece Thomas Watson) for appellant

Sam Grodzinski KC, Myles Grandison and George Molyneaux (instructed by Government Legal Department) for respondent

Hearing Hearing dates: 3 and 4 March 2026

Judgment Approved by the court

[1]This is the judgment of the court to which we have all contributed.

Background, summary of facts and judgment below

[2]By a notice of appeal sealed on 28 February 2025, the appellant sought permission to appeal against the order of McGowan J (“the judge”) dated 5 February 2025 dismissing his claim for judicial review in which he challenged the lawfulness of the defendant’s decision, through His Majesty’s Prison and Probation Service (“HMPPS”), to segregate him from other prisoners in the Long Term High Security Estate (“LTHSE”) within the Close Supervision Centre (“CSC”) regime. On 19 May 2025, permission to appeal was granted by Warby LJ on eight of the nine grounds raised in the appeal notice.

[3]At the heart of this appeal is the interpretation and application of the relevant Prison Rules.

[4]Prison Rule 45 is headed “Removal from association”. It provides:

[5]“45. (1) Where it appears desirable, for the maintenance of good order or discipline or in his own interests, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the governor may arrange for the prisoner's removal from association [for up to 72 hours]. (2) Removal for more than 72 hours may be authorised by the governor in writing who may authorise a further period of removal of up to 14 days. (2A) Such authority may be renewed for subsequent periods of up to 14 days. (2B) But the governor must obtain leave from the Secretary of State in writing to authorise removal under paragraph (2A) where the period in total amounts to more than 42 days starting with the date the prisoner was removed under paragraph (1). (2C) The Secretary of State may only grant leave for a maximum period of 42 days, but such leave may be renewed for subsequent periods of up to 42 days by the Secretary of State. (3) The governor may arrange at his discretion for a prisoner removed under this rule to resume association with other prisoners at any time (3A) In giving authority under paragraphs (2) and (2A) and in exercising the discretion under paragraph (3), the governor must fully consider any recommendation that the prisoner resumes association on medical grounds made by a registered medical practitioner or registered nurse working within the prison. (4) This rule shall not apply to a prisoner the subject of a direction given under rule 46(1).”

[6]Prison Rule 46 is headed “Close supervision centres”. It provides:

“46. (1) Where it appears desirable, for the maintenance of good order or discipline or to ensure the safety of officers, prisoners or any other person, that a prisoner should not associate with other prisoners, either generally or for particular purposes, the Secretary of State may direct the prisoner's removal from association accordingly and his placement in a close supervision centre of a prison. (2) A direction given under paragraph (1) shall be for a period not exceeding one month [or, during a coronavirus period, three months], but may be renewed from time to time for a like period [and shall continue to apply notwithstanding any transfer of a prisoner from one prison to another]. (3) The Secretary of State may direct that such a prisoner as aforesaid shall resume association with other prisoners, either within a close supervision centre or elsewhere. (4) In exercising any discretion under this rule, the Secretary of State shall take account of any relevant medical considerations which are known to him. (5) A close supervision centre is any cell or other part of a prison designated by the Secretary of State for holding prisoners who are subject to a direction given under paragraph (1).”

[7]The operation of the CSC estate was described in a witness statement by Alexander Worsman, the Head of the Long Term & High Security Prisons Group within HMPPS and Chair of the CSC Management Committee (“CSCMC”):

“The CSC estate manages some of the most challenging prisoners in England and Wales. CSC units have been in operation since 1998 …. The operation of the CSC estate is set out in detail in the CSC Operating Manual 2017 …. A prisoner’s referral into the CSC is governed by the Close Supervision Centre Referral Manual …. The CSC system provides a multi-disciplinary risk management approach to dealing with prisoners who have demonstrated, or evidenced a propensity to demonstrate, violent and/or highly disruptive behaviour in custody. Such prisoners are removed from ordinary locations and managed within a small and highly supervised units (‘CSC unit’) or in cells that have been designated by the Secretary of State for Justice (Designated Cells or DCs) under Prison Rule 46 …. All Designated Cells are currently located in the ‘segregation units’ of High Security prisons, although the provision permits the Secretary of State to designate cells in other parts of a prison where the need arises i.e. in the healthcare unit. Only prisoners who have been assessed as being suitable to be held under PR 46, or those undergoing or awaiting assessment, can be held in CSC units or Designated Cells. This enables an assessment of their risks, followed by individual and/or group work to try to reduce the harm they pose to others, with the aim of enabling a return to normal, or a more appropriate, location as risk reduces. There is no crossover or close contact with mainstream prisoners whilst an individual is subject to PR 46 …. The CSC system currently has 56 spaces located across six dedicated CSC units and a further 12 spaces in Designated Cells, giving an overall operational capacity of 68. These spaces are spread over eight prison sites.”

[8]Mr Worsman went on to describe the use of Designated Cells (“DCs”) within the CSC:

“DCs are a resource available to the CSCMC and must only be used for CSC inmates (as opposed to being used to hold mainstream prisoners) to ensure adequate PR 46 cells are available across the estate. DCs are appropriate when it becomes necessary temporarily to remove prisoners from the main CSC units. There is, however, no upper limit prescribed on the time prisoners may be held in DCs, although both the Central Management Group and CSCMC will, on a monthly basis, review information about each prisoner located in a DC and seek to locate the prisoner within a main CSC unit as soon as is appropriate and operationally possible.”

[9]In his statement, Mr Worsman also described the management of CSC prisoners. Each prisoner is provided with a structured Care and Management Plan (“CMP”) which identifies the work that is required to reduce and manage the risk of harm posed by the prisoner. “CMPs are the tool with which risks, needs and positive behaviour are recorded, managed and monitored so as to evidence progress. They represent the core of decision-making for CSC prisoners and require active input from the prisoner and all members of the multi-disciplinary team who work with that prisoner. The CMP will be reviewed quarterly.” In addition to CMPs, weekly reports are compiled by a personal officer who should meet with the prisoner to provide feedback on his conduct over the past seven days. Mr Worsman continued:

“In addition, a monthly report is completed for each prisoner for submission to the monthly CSCMC meeting. The purpose of the monthly report is to enable the committee to review and make decisions regarding location, placement and possible de-selection of each prisoner. The report explains whether and if so why continued placement within the CSC is necessary, by highlighting areas of risk, progress, concerns regarding continued placement, and any other relevant factors …. Monthly reports should be disclosed to the prisoner prior to the CSCMC to enable them to make comments. The prisoner, or their legal representative, is permitted to submit representations which are considered by the CSCMC. Following the meeting, the report should be updated with relevant minutes and a copy of the updated report should be provided to the prisoner.”

[10]The appellant is serving a life sentence after being convicted in 2008 of three murders, two attempted murders, and one count of possession of a firearm with intent to endanger life. The minimum term he must serve before being eligible to apply for parole was set at 35 years. The details of the offences were summarised by

the judge in her judgment in the following terms:

“46. … His brother was convicted of the same offences. Three men had been shot dead. Two women, present in the house, were stabbed, with an intention to kill, and seriously injured. 47. The incident took place in a house in Bishop's Stortford, the Claimant and his brother had gone to the house in a dispute arising out of drug dealing and together carried out the attack. Both the brothers had gone to the scene with a Mach 10 firearm and a large quantity of ammunition. They carried out the attack, which was described by the Court of Appeal Criminal Division as a "massacre" and "ruthless and brutal". The Claimant's brother actually carried and used the gun.”

The appellant, who claimed not to have been present when the offences were committed, appealed unsuccessfully against the conviction, and continues to deny his guilt.

[11]Throughout his sentence, the appellant has been a Category A prisoner, rated as one whose “escape would be highly dangerous to the public”.

[12]On 13 March 2010, while at HMP Frankland, the appellant inflicted serious injuries to three members of the prison staff with a broken bottle. According to Mr Worsman’s statement, the appellant’s CMP described the attack in the following terms:

“On 12 March 2010 [the appellant] was placed onto basic regime due to recent negative behaviour. He then barricaded himself behind his door after he had refused to lock up. He later voluntarily removed the items. The following morning [he] seriously assaulted three members of staff with a weapon made from a broken glass bottle. In CSC documentation it is reported that [he] first stabbed one officer who began to bleed heavily; he then chased another officer and stabbed her in the back resulting in her collapsing. It is reported that [he] was restrained and slashed another officer’s face, back of their head and made a puncture wound to left hand side of the stomach. It is reported that batons were drawn by prison staff in order to contain the situation and that [he] was relocated to the segregation unit.”

[13]After this incident, the appellant was transferred to the CSC at HMP Woodhill under the referral process and, after assessment, formally accepted into the CSC system. He was charged and tried for offences of attempted murder and assault, but acquitted. His case at trial was that he had acted in lawful self-defence.

[14]Since this incident, the appellant has remained within the CSC establishment, but has been repeatedly transferred between prisons. Between 2011 and 2019, he was moved between prisons on eleven occasions.

[15]In 2017, the appellant started civil proceedings against the Ministry of Justice in the Central London County Court seeking damages and a declaration that the defendant was in breach of his rights under Articles 3, 8 and 14 of ECHR by failing to protect him from racist and religiously motivated abuse and assaults from other prisoners at various prisons.

[16]In September 2019, the appellant was transferred from HMP Whitemoor to the CSC unit at HMP Full Sutton. On 7 April 2021, he was transferred to a DC at the prison. The reasons for the transfer were set out in a letter dated 9 April 2021, recited in full at paragraph 60 of the judgment. In summary, the reasons were said to be(a) the appellant’s “continued non-engagement with the multidisciplinary team at the prison”,

(b) an incident when he allegedly made an indirect threat towards his prison offender manager, and

(c) his behaviour which was said to be challenging to staff and had “affected the progression of the other men on the unit”.

[17]In August 2021, the appellant’s solicitors requested that the prison take steps to produce him for the trial of his civil claim then listed for October 2021. On 31 August 2021, he was transferred to a DC at HMP Belmarsh. In the event, the trial did not proceed and, after the defence was struck out following the defendant’s breach of disclosure obligations, and an application for relief from sanctions refused, the appellant was granted a declaration that his rights had been breached and awarded damages of £25,000 plus costs. Meanwhile, the appellant remained in the DC at Belmarsh.

[18]On 12 July 2022, the appellant issued the present claim for judicial review, putting forward seven grounds for contending that his confinement was unlawful:(1) His ongoing segregation was in breach of his right not to be subject to inhuman and degrading treatment contrary to

Article 3 of ECHR

(2) The defendant’s policy on the use of DCs, as set out in the CSC operating manual, was unlawful because it gave rise to a significant risk of breaches of prisoners’ rights under Article 3.

(3) In breach of common law rights of procedural fairness, the defendant had failed and continued to fail to give proper reasons for the appellant’s ongoing segregation.

(4) In breach of his own policy, as set out in the operating manual, the defendant’s CSCMC was failing to review the appellant’s segregation at each monthly meeting.

(5) The defendant’s ongoing segregation of the appellant was in breach of his rights under

Article 8 ECHR

, taken together with section 6 of the Human Rights Act 1998.

(6) The defendant’s policy on the use of DCs, as set out in the operating manual, was unlawful because its application inevitably resulted in decisions which involved a disproportionate interference with prisoners’ Article 8 rights.

(7) The defendant’s ongoing segregation of the appellant was in breach of his right not to be subject to discrimination in the enjoyment of his rights under

Article 14 of ECHR

, taken in conjunction with Articles 3 and 8, on the basis that the appellant and others in his position were subject to unjustifiable differences in treatment, as compared to non-CSC prisoners who are segregated, in respect of the review/scrutiny of his segregation.

[19]The claim was supported by a statement from the appellant and a report arranged by his solicitors prepared by a consultant psychologist, Dr Jackie Craissati. A major issue in this case is that the appellant has refused to undertake psychological assessments under conditions required by the prison service. In particular, he objects to the requirement that prison officers be present during the assessment. It is his case that he only feels able to engage with psychologists in an appropriate therapeutic environment. In her report, Dr Craissati recorded that she had met the claimant on three occasions and was confident that she had the claimant’s cooperation. She had seen previous medical reports and a number of CSC Management Committee plans and monthly reviews. She concluded that the risk of violence from the appellant to prison officers was “moderate” and to civilian staff was “low”.

[20]On 9 November 2022, Ritchie J granted the appellant permission to apply for judicial review under grounds 1 to 6. The appellant subsequently filed a notice seeking to renew his application in respect of ground 7. On 2 March 2023, the Secretary of State filed detailed grounds of defence, supported by the witness statement from Mr Worsman. Amongst documents disclosed in the proceedings were records of the CSCMC monthly decisions and minutes relating to the appellant from March 2021 to February 2023.

[21]The hearing before the judge took place over two days in April 2023. Judgment was reserved.

[22]In 2023, the appellant was transferred to HMP Manchester. At the judge’s request, the parties provided updated information which she subsequently summarised in the judgment. At Manchester, the appellant remained in a CSC under Rule 46 but was no longer held in a DC. In May 2024, the appellant was transferred to HMP Whitemoor.

[23]On 9 September 2024, while judgment in this case was still awaited, judgment in another case was handed down by Ellenbogen J and reported as R (Awale) v Secretary of State for Justice

[2024] EWHC 2322 (Admin)

. Junior counsel Aidan Wills and Myles Grandison appeared in both cases. At counsel’s request, the judge allowed supplemental submissions to be filed addressing the relevance of the Awale decision.

[24]On 5 February 2024, McGowan J handed down judgment dismissing the claim.

[25]In her judgment, she set out Rule 45 and Rule 46 and summarised the evidence about the CSC system. Under the heading “Evidence and disputes of fact” she noted that there had been no application on behalf of the appellant to cross-examine Mr Worsman and observed (at paragraph 40) that, following Singh v SSHD

[2018] EWCA Civ 2861

, she was therefore bound to follow uncontradicted evidence unless “it cannot be correct”. She rejected a submission on behalf of the appellant that the jury’s verdicts were the “final word” on the Frankland Prison incident, holding (paragraph 56) that, although the appellant was acquitted, “that does not mean that HMPPS are not entitled, and bound to, consider the incident in terms of risk assessment.” She set out the history of the appellant’s various moves within the prison estate and summarised the evidence in his statement and Mr Worsman’s statement.

[26]She then considered what she called “the issue of non-engagement”:

“116. The issue of his “non-engagement” is at the core of this case. The Defendant says that the Claimant refuses to engage, he says that the Defendant refuses to allow him to engage on a proper basis. In reply the Defendant says that the manner in which he seeks to demonstrate his engagement, “on his own terms” is not true engagement and in any event is not viable given his status as a life prisoner. By way of illustration his “willingness”, or otherwise, to work with a psychologist is relied upon by both sides to make their point. The Claimant says that he will work with Dr Craissati, The Defendant has facilitated such consultations but says he also has to work with the Medical team within the HMPPS. They have offered the opportunity to work with the Emeritus Professor, who was apparently previously requested by the Claimant. He now refuses that offer. A stalemate results. 117. The prison authorities have to manage a large number of prisoners detained at different categorisations and for very different lengths of sentence. For most long-term prisoners there should be scope to work on rehabilitation and re-integration. That can only be undertaken on the basis of full and proper risk assessment and a willingness to engage on both sides.”

[27]The judge then turned to the grounds of appeal, noting that there was “a degree of overlap between the grounds”. Under ground 1, she observed that it was “obviously the principal challenge”, adding that “some later arguments stand or fall with that ground”. She noted that the initial placement in segregation was not challenged under Article 3. She also observed (at paragraph 139, citing Ahmad v UK

(2013) 56 EHRR 1

) that “bad faith in the decision-making process would mean that the measure was not lawful as not being demonstrably necessary and proportionate”.

[28]At paragraph 140, she said:

“What amounts to a prolonged detention and whether it is an unnecessary prolongation is also entirely fact specific. It should not be longer than is necessary on the facts of a given case. Additionally, the nature of the segregation is also highly relevant. Social isolation is avoided or mitigated by contact with staff, medical teams, lawyers, independent monitors, family, clerics and others. Such daily contacts are part of the pattern within segregation, the quality and quantity of such contact cannot be isolated or separated from the question of the duration of segregation. It is all part of the picture to be assessed. The less contact with others, the greater the impact of segregation and the more the passage of time becomes a concern. The number of social and legal visits and calls also form part of the picture. The Claimant has a significant number of visits and telephone contact with others.”

She further observed (at paragraph 141, citing Ramirez Sanchez v France

(2007) 45 EHRR 49

) that “the decision to segregate and continuing decision to maintain segregation, must be conducted with procedural fairness.”

[29]This led her to the following conclusion on ground 1:

“145. Daily life on a CSC or even in a DC is far from what an individual, in this case Mr Thakrar would choose, but it cannot be said to reach the very high level of ill-treatment required to be classified as a breach of his Article 3 rights. I cannot find any evidential basis for the contention that his placement is being deliberately maintained in bad faith to break his will or resistance. In reality a minimal amount of engagement might well have brought about a relaxation in the strictness of the regime. 146. I have carried out a rigorous examination of the evidence presented by the parties. I cannot find an evidential basis that the continuation of the Claimant’s removal from association reaches “the minimum level of severity which is necessary for article 3 to apply”, as described by Lord Reed in R(AB) v SSJ [2021] 3 WLR 494.”

[30]Turning to ground 2, the judge noted that the contention on behalf of Mr Thakrar was that the decision to continue his DC placement was made “because it punishes him and is intended to compel him to comply”. The judge found no evidential basis for this assertion, noting (at paragraph 152):

“It would require a large group of people internal and external to HMPPS to be working together to keep him in a DC for no good reason, and in particular for the bad reason of inflicting damaging and potentially dangerous punishment on him.”

[31]In respect of ground 3, the judge rejected the argument that the Secretary of State had failed to give the appellant proper reasons for his ongoing segregation. She held that there had been compliance with the requirement stipulated by the Supreme Court in R (Bourgass) v SSJ

[2015] UKSC 54

;

[2016] AC 384

that a prisoner in the appellant’s position was entitled to know “the substance” of what was being said in sufficient detail to enable them to respond. Here, as the judge observed (at paragraph 156):

“The reasoning behind the original placement is set out in full in the letter of 9 April 2021. The periodic reviews were provided to the Claimant and his legal representatives. He further received the weekly reviews, the monthly reports from the MDT and his quarterly CMP reviews. The Claimant has always made sure that he seeks information. He has always known, though not accepted, that his continuing placement was explained by his refusal to engage.”

[32]With regard to ground 4, the judge rejected the argument that the Secretary of State had acted in breach of her own policy by failing to review the appellant’s segregation at each monthly meeting, concluding on the evidence (paragraph 159) that it was “clear from the records of the CSCMC meetings that such consideration was given to the Claimant’s ongoing placement.”

[33]Under ground 5 – that segregation was in breach of Article 8 rights – it was conceded by the Secretary of State that the monthly decisions on the appellant’s continued placement had on occasions wrongly been taken by the CSCMC consisting of “acting governors”, contrary to the decision of the Supreme Court in Bourgass, supra. Other arguments advanced on his behalf in support of this ground – including that segregation was being used to compel him to undertake psychological assessments – were rejected. In those circumstances, the judge held that declaratory relief on the basis of the concession was just satisfaction for the breach, noting (at paragraph 165) that it was “not argued that the committee, if comprised of representatives of the Secretary of State rather than acting governors would have reached a different decision.”

The judge also rejected the submissions made under ground 6, stating (paragraph 168):

“If the law permits HMPPS to require an assessment to measure risk when considering the decision to segregate or return from segregation, then HMPPS are entitled to require such an assessment be carried out and a refusal means the risk assessment is not completed and the decision to return cannot be safely made. If there is a basis for a placement, as here, and if a refusal to engage prevents the completion of an assessment, then the interference is not disproportionate.”

[35]Finally, the judge dismissed the renewed application for permission under ground 7. The appellant’s argument under Article 14 was “on the basis that the Claimant (and others in his position) are subject to unjustifiable differences in treatment, as compared to non-CSC prisoners who are segregated, in respect of the review/scrutiny of his segregation.” The judge rejected this argument:

“173. PR45 allows a governor to remove a prisoner from association for up to 72 hours and to renew that for periods up to 14 days, any period of more than 42 days has to be authorised by the SSJ. PR46 allows removal from association followed by an assessment period of 4 months. The removal is assessed and reviewed by the CSCMC on a monthly basis. Whilst both rules authorise a removal from association, they are different both in their process and impact. 174. This ground is not properly arguable, even if it were not dependent on earlier findings of any breach of Article 3. Prisoners held under PR 45 or 46 are not in the same or a similar position. The purpose and safeguards within the rules are not the same or sufficiently similar to engage Article 14.”

Delay

[36]The judge took more than 21 months to give judgment, although part of this was attributable to the receipt of supplementary submissions from the parties following the decision of Ellenbogen J in Awale v SSJ (see paragraph 41 below) in September 2024. Even in a case not involving oral evidence, such a delay is highly regrettable, all the more so because the subject matter in the case includes an allegation of continuing inhuman and degrading treatment. Mr Armstrong does not seek to argue that the Claimant’s appeal should be allowed on the basis of delay alone. But he was right to submit that the very long delay in giving judgment makes it “appropriate to scrutinise the judgment with particular care” (Floreat Investment Management Ltd v Churchill

[2023] EWCA Civ 440

at [87] per Males LJ). Mr Grodzinski did not submit otherwise.

The grounds of appeal

[37]The judge refused permission to appeal but it was granted by Warby LJ on eight grounds as follows:- “Ground 1: The Judge made four errors of legal principle which run through the judgment, misdirecting herself that:(a) she was not required to decide the ECHR claims for herself and was instead exercising a common law judicial review function in respect of those grounds;

(b) for the purposes of the claim under

Article 8 ECHR

– and by logical extension

Article 14 ECHR

- A bore the burden of proving that the interference/treatment of which he complained was not justified;

Article 3 ECHR

claim; and

(d) other (unspecified) grounds of claim stood or fell with the

Article 3 ECHR

claim – the Judge had not reached conclusions under Article 3 which had any direct bearing on the other grounds. Ground 2: The Judge applied the wrong standard of proof to A’s claim under

Article 3 ECHR

, misdirecting herself that A had to prove his case to the criminal standard: beyond reasonable doubt. Ground 3: The Judge erred in failing to consider and make findings on A’s case in respect of R’s failure to comply with the procedural requirements identified in the

Article 3 ECHR

case law on segregation in prisons as being integral to substantive compliance with

Article 3 ECHR

. Ground 4: The Judge’s conclusion that the Close Supervision Centre Management Committee (“CSCMC”) regularly (i.e. monthly) reviewed A’s segregation within the CSC (as distinct from his placement in the CSC system), was unsupported by the evidence and not a finding that was reasonably open to her. Ground 5: The Judge’s conclusion that the CSCMC provided A with genuine and meaningful reasons for his segregation, as required by the common law, throughout his segregation was unsupported by the evidence and not a finding which was reasonably open to her. Ground 6: The Judge erred in failing properly to consider and make findings on A’s claim challenging his segregation as a breach of

Article 8 ECHR

. She upheld part of the

Article 8 ECHR

claim on the basis of a narrow concession by R, which (a) formed no part of A’s pleaded case; (b) was expressly stated to apply only to some of the periods of A’s segregation under challenge; (c) did not apply any periods where the CSCMC had not as a matter of fact carried out monthly reviews of A’s segregation (something on which the Judge made no findings); and (d) A expressly asked the Judge not to rely on as a basis to decide his claim. As a result, the Judge failed to consider A’s substantive claim under Article 8 and to make findings covering the full period of segregation with which his claim was concerned. Ground 7: The Judge erred in holding that segregating A was not detriment arising from his failure to undertake a psychological assessment and/or segregation was not being used to compel him to do so, despite having found that A was segregated because R had not been able to assess him through such an assessment. The absence of a specific “plan” to this effect on the part of R was irrelevant. The Judge was therefore wrong to conclude that A’s

Article 8 ECHR

rights were not engaged in these circumstances. In reaching that conclusion, she failed to take into account ECtHR case law holding

Article 8(1) ECHR

to be engaged in circumstances which are not materially distinguishable (in particular: Vavricka v Czech Republic

(2021) 51 BHRC 241

). Ground 8: The Judge misdirected herself as to the law in refusing permission to apply for judicial review in respect of A’s case under

Article 14 ECHR

(taken with Articles 3 and 8 ECHR) concerning the unjustified difference in treatment in respect of the procedural safeguards in place to protect CSC and non-CSC prisoners who are segregated, respectively, under rules 45 and 46 of the Prison Rules 1999, in that she: (a) held that A could only succeed on this ground if he established a breach of another ECHR right; and (b) held that it was the treatment complained of (i.e. the procedural safeguards) which had to be relevantly similar, rather than the cohort of persons that A (and those in his position) were treated differently from (i.e. non-CSC prisoners).”

[38]We will begin, as counsel did in oral argument, with the two common law grounds (that is to say, those which do not refer to the ECHR), namely Grounds 4 and 5.

Grounds 4 and 5: findings alleged to have been unsupported by evidence

[39]We take Grounds 4 and 5 together as they are linked. They concern the judge’s findings regarding the monthly reviews of the appellant’s segregation over the relevant 24-month period from April 2021 to March 2023.

[40]As set out above at paragraph 5, Rule 46 empowers the respondent to direct a prisoner’s removal from association with regular prisoners and placement within a CSC for the maintenance of good order or discipline or to ensure the safety of officers, prisoners or any other person. Prisoners subject to Rule 46 may be held in CSC units where they can associate with other CSC prisoners, or they may be removed from association altogether. When Rule 46 prisoners are removed from association with other CSC prisoners, they are either placed in a DC or they remain in a CSC unit but are placed on “single unlock”, meaning that they are not permitted to be outside their cells with other prisoners.

[41]Rule 46(1) requires monthly reviews of all CSC prisoners by the respondent, who acts through the CSCMC for this purpose. It was common ground before us that monthly reviews under Rule 46(1) require consideration of two matters:(i) the prisoner’s placement within the CSC estate and (if the prisoner has been further segregated)

(ii) their removal from association within the CSC. This was the conclusion of Ellenbogen J in Awale v SSJ

[2024] EWHC 2322 (Admin)

and was accepted by the respondent as accurately reflecting the position.

[42]The common law requirement for reasons to be given in respect of segregation is summarised in the judgment of Lord Reed in Bourgass at [100]:

“A prisoner’s right to make representations is largely valueless unless he knows the substance of the case being advanced in sufficient detail to enable him to respond.…..what is required is genuine and meaningful disclosure of the reasons why authorisation [for segregation] is sought. The reasons for continued segregation which were provided by the prison staff involved in the present cases gave, at best, only the most general idea of the nature of their concerns, and of why those concerns were held. More could and should have been said – and was said, in the witness statements filed in these proceedings – without endangering the legitimate interests which the prison authorities were concerned to protect. The imposition of prolonged periods of solitary confinement on the basis of what are, in substance, secret and unchallengeable allegations is, or should be, unacceptable.”

[43]Bourgass concerned prisoner segregation under Rule 45, not Rule 46, but the common law duty to give reasons applies equally to both.

[44]The appellant argued before the judge that, in breach of the respondent’s own policy set out in the CSC Operating Manual, the CSCMC failed to review his removal from association, separately from his placement within the CSC estate, and further that the respondent failed to give proper reasons for his ongoing segregation, in breach of common law requirements of procedural fairness. The judge found against the appellant on both points, as noted above. Mr Armstrong submitted that neither of these conclusions was supported by the evidence.

[45]Dealing first with the CSCMC segregation reviews: we have been back through all the reports to and minutes of, the CSCMC meetings from the relevant period. There was more than sufficient evidence to justify the judge’s conclusion that the CSCMC had considered the appellant’s continued segregation and not just his placement within the CSC estate. Although placement within the CSC estate and segregation were both matters that the CSCMC was required to consider, this did not mean that a separate decision-making process was required for each.

[46]Upon the appellant’s transfer from the CSC unit to a DC at HMP Full Sutton in April 2021 the minutes of the CSCMC meeting recorded that there had been a teleconference to discuss “[the appellant]’s location and risk due to indirect threats to a member of staff and continued non-engagement on the unit…Agreed that [the appellant] would remain at Full Sutton but to locate to a DC”. Plainly, in reviewing the relocation from a placement on the CSC unit (where he was able to associate with other CSC prisoners) to a DC at HMP Full Sutton, the CSCMC had considered the appellant’s removal from association.

[47]From April 2021 to September 2021 the appellant was held on a DC at HMP Full Sutton before being transferred to a DC at HMP Belmarsh from September 2021 for the remainder of the relevant two-year period. As location in a DC involves a removal from association with other CSC prisoners (see above) it follows that, in reviewing the appellant’s location within the DC at HMP Full Sutton and subsequently within the DC at HMP Belmarsh, the CSCMC was necessarily considering his continued segregation as well as his continued placement within the CSC estate.

[48]As to the reasons given to the appellant for his continued segregation, Mr Armstrong argued that these were inadequate, being brief and largely formulaic, for example “[the appellant] is appropriately placed at this time”. Where reasons were given they were mostly about non-engagement with staff. Mr Armstrong argued that there should have been a more detailed examination, for instance, of the reasons which the appellant, through the report of Dr Craissati, had advanced for his continued non-engagement with prison psychologists; likewise some consideration as time went on of the continued impact (if any) of the circumstances which had prompted the appellant’s removal into segregation in April 2021. He suggested that the reasons which were given to the appellant, such as they were, should also have reflected the extent to which the CSCMC had relied upon a mistaken belief in 2022 that the appellant needed to remain in a DC at Belmarsh for the purposes of civil proceedings. Mr Armstrong submitted that these and other matters had simply not been considered or, if considered, had not been dealt with as they should have been in the reasons given to the appellant at the time.

[49]Mr Armstrong criticised the limited, often non-existent, record of “feedback” given to the appellant in the CSCMC Decision forms. But it is important to appreciate that this note of “feedback” was by no means the only information given to the appellant in the CSCMC review process. Information about management of CSC prisoners within the CSC system, including the review process, was provided by Alexander Worsman (then Temporary Head of the Long Term and High Security Prisons Group) in his statement dated 2 March 2023 prepared for the hearing before McGowan J. Each CSC prisoner has a Care and Management Plan (CMP), described by Mr Worsman as “the tool with which risks, needs and positive behaviour are recorded, managed and monitored so as to evidence progress. They represent the core of decision making for CSC prisoners and require active input from the prisoner and all members of the multi-disciplinary team who work with that prisoner”. There are weekly reports compiled by a Personal Officer who will meet with the prisoner to discuss the report, and a monthly report is prepared by the Multi-Disciplinary Team (MDT) at the unit for each prisoner for submission to the monthly CSCMC meeting. The prisoner receives a copy of the monthly report, allowing them or their representatives to submit representations for consideration by the CSCMC. Mr Worsman goes on to point out that CSC prisoners held in a DC are also reviewed at the monthly Care and Management Group (CMG) meetings, where the appropriateness of continued location in a DC is discussed and the CMG makes a recommendation to the CSCMC. Prisoners and/or their legal representatives are able to submit representations for consideration by the CMG.

[50]It is necessary also to keep in mind the series of violent events which brought the appellant first into prison and subsequently into the CSC estate. His stay within the CSC estate has been further marked by episodes which have heightened concerns about the risk he presents to staff and other prisoners. The appellant has presented real challenges to those tasked with managing him as he serves his life sentence for murder. In order to manage the risk he presents within the custodial estate, staff, in particular HMPPS psychologists, need properly to assess that risk. To do that, they need to meet and engage with the appellant, and he needs to engage with them. Otherwise, his CMP, upon which everything turns (see above), cannot be updated and he cannot progress.

[51]The appellant was provided with detailed reasons for his move to a DC at HMP Full Sutton by letter dated 21 April 2021. His non-engagement was cited as a key reason for the move:

“This decision has been taken due to your continued non-engagement with the multi-disciplinary team at Full Sutton. Despite continued efforts by our team to promote an open channel of verbal communications, you continue to ignore the team… It is also of concern that you continue to choose not to engage with the current clinical team in order to address your risks and to progress through the CSC system. You have refused to attend regular review meetings in order to discuss your levels of engagement, CMP targets and any issues you have had had for a number of months, despite COVID safe measures being in place … In terms of future progression, we are more than happy to welcome you back to the unit at Full Sutton in the future when you improve your levels of engagement with the local MDT and the CSC process as a whole…”

[52]The reports to the CSCMC, and the minutes of CSCMC meetings, over the two years after the appellant’s transfer to a DC in April 2021 repeatedly refer to his non-engagement with unit staff, including particularly the psychology staff. We do not propose in this judgment to identify and go through every document bearing on each monthly review over the two year period, showing what information the appellant was given, what the CSCMC considered in arriving at its decision and what reasons the appellant was given for, or must have understood concerning, his continued segregation within the CSC estate. It will suffice to give a number of examples:

[53]The MDT report for the May 2021 review period, ie the period immediately following the appellant’s transfer to a DC at HMP Full Sutton continues to refer to his refusal to engage with prison staff. The report from psychology recorded “refuses to engage with me….I am also offering the meeting by going to his door myself and asking him, following a complaint that he made regarding me asking segregation officers to ask him if he would like to meet. Despite this [the appellant] still does not wish to meet”. Against the various lines of this report the appellant has written “nonsense” and “false”, demonstrating that he saw the reasons given by the management team for his continued placement in a DC on the unit. The report for the CSCMC also records the appellant’s request at that time to move away from the CSC unit at HMP Full Sutton to another CSC unit at HMP Whitemoor. The recommendation to the CSCMC at that time was “[the appellant] is appropriately placed within the CSC system and Segregation DC here at HMP Full Sutton”. The minutes for the May CSCMC review meeting, dated 18 May 2021 specifically reference that the appellant is being held in a DC before going on to record threats made to staff, minimal engagement with staff on the unit and his declining to meet with psychology, concluding that the appellant was “appropriately placed in the CSC estate at this time”.

[54]The minutes for the June 2021 CSCMC meeting record that the appellant “is suitably located at Full Sutton in a DC at this stage”, expressly indicating separate consideration of his segregated status within the CSC unit. There is reference also to the appellant complaining of being harassed by the MDT offers of support, accompanied by a suggestion that it is “worth us keeping offering support, ie offer of postal contact with psychology is another option”. The feedback to the appellant from this meeting includes “[the appellant] has been provided with a copy of the HCR-20 [risk assessment] by his allocated psychologist who also offered an opportunity for discussion, however [the appellant] declined to interact with her...Continuing to impact upon others on the unit...[the appellant] still does not engage with the full MDT and must demonstrate this to progress through the CSC estate, he is suitably placed at this moment in time”. It would have been evident to the appellant from this that, two months after his segregation for reasons that included non-engagement, the CSCMC continued to see that as a key reason for deciding that he should remain segregated.

[55]On 31 August 2021 the appellant was transferred to a DC at HMP Belmarsh. The monthly review report for the CSCMC meeting in September recorded that the appellant “has been transferred to HMP Belmarsh DC to engage with a new MDT”. The feedback given to the appellant included:

“[the appellant]’s location at HMP Belmarsh was facilitated following a request from his solicitor for an impending court case and to engage with a fresh team. The committee recommend that [the appellant] continues to build appropriate relationships with the local team and engage in his due CMP to help plot an appropriate pathway from Belmarsh”

. As Mr Worsman states, and as the appellant would have known, the CMP is the essential risk management tool by which a CSC prisoner’s onward progress is organised and directed.

[56]By letter dated 8 October 2021 to the appellant the CSC Operational Lead set out the current position regarding his placement, including the following:

“CMG [Care and Management Group] found a suitable location at HMP Belmarsh in a Designated Cell (DC) to facilitate a different MDT approach and assist with youm upcoming court case.For you to progress within the CSC estate we require you to engage fully with the local MDT and your named Psychologist. We recognise that you perceived a breakdown with the team at Full Sutton and we will look to move you to a suitable location in due course.Once your court case has been concluded we will consider a move to another CSC unit… We must reinforce that your engagement is a key decision in your location as we will consider all options including the use of a DC in another establishment should you choose not to engage”

. The letter advised the appellant to engage with the CMP process to work towards four targets including engaging with the local MDT and psychology sessions offered, concluding “we hope this has given you a clear picture of what a potential pathway could look like with your future engagement”

[57]CSCMC minutes from November 2021 include “[the appellant] is in a DC as he requested a move out of HMP Full Sutton, he does not engage in the CSC process and his legal team requested that he is located in a establishment near the court holding his case. We have written to [the appellant] and explained how he can best progress and when he is at that point we will discuss options for units that can best assist him with his journey through the CSC system…[the appellant] is appropriately located within the CSC system until his level of risk is reduced”. The feedback to the appellant from that meeting essentially reproduced the whole of the minuted discussion concerning his case, including this passage. The CSCMC monthly review for May 2022, which the appellant saw, referred to his CMP and the targets for engagement. Detailed feedback from the CSCMC meeting was given including:

“He puts barriers in the way to anything the staff try to offer him…Some progress has been made is the access to the psychological services team at Belmarsh, currently seen every other week, through his cell door, however it still remains a problem with the sharing of information between services. [Mr Worsman, then Chair of the CMG] stated that it’s a very clear line that his pathway is described through his CMPs. He needs to work on his risk which is through the CMP process. GV advised that it’s been made very clear to [the appellant] what his pathway is, which is for him to engage in a forensic psychological assessment with Professor Grubin, and what we need to do to progress him from CSC. If he wants to put barriers in the way that is his choice. DA confirm that this is documented very clearly in his current CMP.”

This feedback essentially reproduced the minutes from the CSCMC meeting.

[58]The June 2022 review report, which the appellant would have seen, included this passage from the CSC Psychology Team “[the appellant] had indicated to Ms Wright (prior to his annual CMP) that he would consider working with both NHS and HMPPS Psychology and was open to having a conversation about what this might look like. The MDT discussed how we could all work together to support [the appellant] in making progress, which included him engaging with well-being checks….[the appellant] asked for specifics about location, duration and content of sessions before deciding if he is willing to engage and it was agreed this could be provided alongside a local review of his alert for no one-to-one working in order to better establish what could be facilitated…He was reminded that his pathway has previously been outlined very clearly, and whilst he may not agree with it or his status as a Rule 46 prisoner, he has a choice about engaging in that pathway. [the appellant] also stated that he has not been provided with the opportunity to engage in risk reduction work in order to progress, however will not engage with a HMPPS commissioned psychiatric/psychological assessment to inform this risk reduction work, instead referencing previous independent reports.” The feedback given to the appellant from the CSCMC meeting, consistent with this, was that “Due to [the appellant] not fully engaging with services and outstanding targets remaining on his CMP you are to remain as a rule 46 prisoner”

[59]The July 2022 report for the CSCMC review, which the appellant would have seen, included this from the CSC Psychology Team:

“[the appellant] is continuing to engage with a member of staff from the NHS psychological therapies team through the cell door for support with his mental health…Further work with either HMPPS or NHS psychology teams can however be safely facilitated in two ways – the adjudication room with operational staff present, or in a gated cell in the healthcare which would provide increased confidentiality, but with operational staff still able to supervise. Unfortunately [the appellant] declined to attend his monthly review so it was not possible to talk to him further about specifics…”

[60]Options for engagement were similarly referred to in the August 2022 report and the feedback given to the appellant included “he is suitably placed within a DC and as a Rule 46 prisoner as he has outstanding targets on his CMP and there are avenues to explore around increased engagement which the local MDT are trying to take forward.” A letter to the appellant dated 19 August 2022 reiterated what he had been told in the letter of 8 October 2021 (at [55] above).

[61]The report for October 2022 noted that “[the appellant] has not achieved any of his CMP targets as he does not engage with the process at present. [he] does not engage with psychology or any targets set through the CMP and declined to attend his most recent CMP”. The feedback given to him from the CSCMC was consistent with this: “[the appellant] has outstanding targets on his CMP and we are unable to fully assess his custodial risk he is to remain in the CSC estate as a PR46 prisoner”.

[62]It is quite apparent from these and other similar reports and CSCMC minutes that the appellant’s CMP required him to engage with the MDT, psychology in particular, in order to assess his risk, address that risk and thereby to identify a suitable future placement for him. All of this must have been obvious to him. As Mr Armstrong pointed out, the appellant is an intelligent man. He must have understood the importance which the respondent, through the CSCMC, attached to his engaging with his CMP and the MDT risk assessment process; that being so, then in circumstances where he knew that he was not engaging with that process, it was not necessary for the CSCMC to explain in any more detail than they did the reasons for his continuing to be held in a DC.

[63]There are a number of points to be made concerning Dr Craissati’s report. First, we note that the instructions to her from the appellant’s representatives were far from CPR compliant, containing as they did a series of highly leading questions. This of itself tends to undermine the weight to be attached to her conclusions. Next, as Dr Craissati herself noted, her finding of PTSD was solely based upon the appellant’s own account given to her; against this, as is referred to in Mr Worsman’s statement, there have been reports from a number of other psychologists concluding that the appellant is not suffering from PTSD. Finally and in any event, there is evidence that the CSCMC had considered Dr Craissati’s report: the CSCMC minutes from February 2023, highlighting points to be included in a reply to representations submitted by the appellant’s representatives refer to having considered “all of his privately commissioned assessments”.

[64]We also reject Mr Armstrong’s criticism of the CSCMC reasoning for having failed to consider the state of the appellant’s civil proceedings when reviewing his placement in the DC at Belmarsh. The judge below concluded that the appellant was transferred to the DC at Belmarsh at the request of his solicitors, to be nearer to the court in which his civil claim was due for trial. There is no appeal against that conclusion. It seems to us that, having made the request to transfer, it was for the appellant or his representatives to keep the unit updated as to the progress of those proceedings; he cannot complain if, not having done so, the CSCMC did not consider those proceedings at their monthly reviews.

[65]Although the judge may have expressed her conclusion regarding the CSCMC’s reasons shortly, we are satisfied that there was ample evidence for that conclusion. The reasons for the appellant’s continuing placement in a DC were regularly and properly explained to him. As Mr Grodzinski said, the appellant can have been in no doubt of what he was supposed to do in order to progress.Ground 1: alleged errors of principle in dealing with the ECHR claims

[66]The first alleged error is that the judge is said to have misdirected herself that she was not required to decide the ECHR claims for herself but instead was only exercising a judicial review function in respect of those grounds. This is based on [127] of the judgment in which she said:- “In this review I am not required to consider what decision I would have reached if the original decision was under challenge. I am not required to decide whether I agree with the decisions under challenge. This is not an appeal against the decisions, rather it is a review in order to establish if the decisions taken are unlawful, procedurally unfair or irrational, and if unlawful, that any error would have made a material difference to the decision under challenge.”

[67]We do not consider that this paragraph on a fair reading discloses an error of principle. The series of decisions under challenge are decisions of the CSCMC (on behalf of the Secretary of State) that Mr Thakrar was to continue to be subject to segregation. All that we understand the judge to be saying in this paragraph is that it was not for her to say, on a judicial review, whether she would have made the same decision herself had she been a one-person CSCMC. The question was rather whether the decision was lawful. The judge was well aware that it was a matter for her to say whether or not the decisions were lawful, including whether they were unlawful by reason of any of the Articles of the ECHR.

[68]The next subheading of Ground 1 complains that the judge wrongly approached the claim under Article 8 “and by logical extension Article 14” on the basis that there was a burden on the Claimant to prove that the interference or treatment of which he complained was not justified. We think that this is best considered when we come to the substantive grounds of appeal relating to Article 8 (Grounds 6 and 7) and Article 14 (Ground 8).

[69]Ground 1(c) argues that the judge was wrong in finding that the Claimant had to prove his case to a “high standard” without confining that principle to the Article 3 claim. This is based on paragraph [175] where the judge said:- “Applying the burden and standard of proof I have not found that the continuing placement of the Claimant was in breach of his Article 3 rights against ill treatment or inhumane or degrading treatment. I do not prejudge the outcome of any challenge to the original placement and whether that will succeed. On the evidence in this review the Claimant has not achieved the high standard required to prove his challenge.”

[70]We do not consider that in this paragraph the judge was referring to the claim as a whole, but rather to the Article 3 claim. (We will come to the issue of the standard of proof for that claim under Ground 2.) The last part of Ground 1 criticises the judge for saying that “other unspecified grounds of claim stood or fell with the

Article 3 ECHR

claim”. This appears to be a reference to Article 14. Mr Grodzinski accepts that for a court to find a contravention of Article 14 does not require a prior finding of a breach of another Article of the ECHR such as Article 3 or Article 8. But whether this is a point of significance can be dealt with when we come to Ground 8, which relates to Article 14.

Ground 2: Standard of proof in the Article 3 claim

[71]At [132] the judge said:- “It is for the Claimant to prove, beyond reasonable doubt, that there has been a breach of the prohibition against inhuman and degrading treatment. These are clearly fact specific questions and there can be no general rule as to the length of time of such a placement, save that it should never be for longer than is necessary.”

[72]The proposition that it is for a Claimant to prove a breach of Article 3 prohibition against inhuman and degrading treatment beyond reasonable doubt is too compressed to be an accurate statement of the law, although it must be said that the judge is in good company. In Ocalan v Turkey

(2005) 41 EHRR 45

, the Grand Chamber of the ECtHR said at [180]:- “In assessing the evidence on which to base the decision whether there has been a violation of article 3, the court adopts the standard of proof beyond reasonable doubt but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact.”

[73]Similarly, in a passage cited by the judge in R (Bary) v SSJ & The Governor of HMP Long Lartin

[2010] EWHC 587 (Admin)

Aikens LJ said:- “…It is for the applicant to establish a breach of the [Article 3] prohibition and the standard of proof for that is “beyond reasonable doubt””.

[74]However, neither of these statements should be taken out of context. We have difficulty with the concept of requiring a legal argument to be proved beyond reasonable doubt. In R(VC) v SSHD

[2018] EWCA Civ 57

;

[2018] 1 WLR 4781

Beatson LJ said that it is clear from Ocalan that the standard of proof “beyond reasonable doubt” applies to the factual question of what has taken place. It does not apply to the legal question of whether the treatment found to have occurred falls within Article 3.

[75]As to that, it is long established in the case law of the ECtHR that once facts have been found, a claimant will only succeed in an Article 3 case by showing that he has been subjected to ill treatment which reaches the “minimum level of severity” necessary for it to be classified as inhuman or degrading treatment. That phrase derives from the Strasbourg court’s judgment in Ireland v UK

(1978) 2 EHRR 25

. The court emphasised that whether this minimum level has been reached requires an assessment of all the circumstances of the case.

[76]R (AB) v Secretary of State for Justice

[2021] UKSC 28

;

[2022] AC 487

is an important domestic case concerning a “single unlock” regime. One factual distinction between AB and the present case was that the claimant there was aged under 18. However, there is a useful and authoritative review in the judgment of Lord Reed PSC of the relevant case law on Article 3. He said:- “41 The range of relevant circumstances was discussed in Ramirez Sanchez

(2006) 45 EHRR 49

, where the Grand Chamber stated at para 118: “The court has considered treatment to be inhuman because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering. It has deemed treatment to be degrading because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. In considering whether a punishment or treatment is degrading within the meaning of article 3, the court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with article 3. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of article 3.” 42 A somewhat fuller catalogue of relevant factors was provided in Ahmad v United Kingdom

(2012) 56 EHRR 1

in the context of ill-treatment of prisoners. The following factors, among others, have been decisive in the courts’ conclusion that there has been a violation of article 3:• the presence of premeditation;

• that the measure may have been calculated to break the applicant’s resistance or will;

• an intention to debase or humiliate an applicant, or, if there was no such intention, the fact that the measure was implemented in a manner which nonetheless caused feelings of fear, anguish or inferiority;

• the absence of any specific justification for the measure imposed;

• the arbitrary punitive nature of the measure;

• the length of time for which the measure was imposed; and

• the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. The court would observe that all of these elements depend closely upon the facts of the case . . . The last sentence of that passage is particularly relevant to the argument in the present case. 43. The application of article 3 in relation to what can broadly be described as removal from association or solitary confinement has been considered by the European court in a substantial number of cases. The court has repeatedly held that removal from association is not in itself inhuman or degrading. In Van der Ven v The Netherlands

(2003) 38 EHRR 46

, para 51, it stated, under reference to earlier decisions: the removal from association with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or degrading punishment. That statement has been repeated in numerous other cases, including several judgments of the Grand Chamber: see, for example, Ramirez Sanchez, para 123, Ilascu v Moldova

(2004) 40 EHRR 46

, para 432, and Ocalan v Turkey

(2005) 41 EHRR 45

, para 191. 44. The court has also made it clear that an assessment of whether removal from association falls within article 3 requires a range of considerations to be taken into account. As it said in Van der Ven (ibid): “In assessing whether such a measure may fall within the ambit of article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.” “

• the presence of premeditation;

• that the measure may have been calculated to break the applicant’s resistance or will;

• the absence of any specific justification for the measure imposed;

• the arbitrary punitive nature of the measure;

• the length of time for which the measure was imposed; and

• the fact that there has been a degree of distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention. “In assessing whether such a measure may fall within the ambit of article 3 in a given case, regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned.” “

[77]At para 50-51 Lord Reed summarized the case law as follows:- “50. The judgments which I have cited demonstrate a consistent approach to the application of article 3. In cases concerned with allegations of ill-treatment, the court asks itself whether the ill-treatment has attained the minimum level of severity which is necessary for article 3 to apply. That minimum level is not fixed, but depends on the circumstances of the case (para 40 above). A range of matters are relevant. They include the age of the applicant and the duration of the treatment, but they are by no means confined to those factors. Judgments concerned with solitary confinement, such as Ramirez Sanchez and Ahmad, have provided lists of factors which the court has found to be relevant. As the court has noted, all of the elements in question depend closely upon the facts of the particular case (paras 41-42 above).” 51. In relation to removal from association, in particular, the court has repeatedly said that such removal does not in itself amount to inhuman treatment (para 43 above), and that a range of considerations must be taken into account (para 44 above). They include the stringency of the measure and its duration, but the court has not laid down a definition of a particular level of stringency (short of complete sensory isolation coupled with total social isolation), or a particular duration, which is sufficient in itself to violate article 3 (paras 44-45 above). As was stated in Ahmad, para 210, the court has never laid down precise rules governing the operation of solitary confinement, and in particular has never specified a period of time beyond which solitary confinement will attain the minimum level of severity required for article 3.”

[78]In the present case, as noted by the judge in the passage set out above at [26], the nature of the segregation is highly relevant. The evidence is that throughout the periods for which he was in segregation, the appellant’s social and legal visits continued. He was able to use an in-cell phone and that, taking the period as a whole, he averaged 1 hour 44 minutes per day on social phone calls. It seems to us that, while his regime can properly be described as removal of association or as segregation, it is an exaggeration to describe it as solitary confinement.

[79]In Ahmad v United Kingdom theECtHR considered the circumstances in which the solitary confinement of prisoners may violate Article 3:

"207. . . . Solitary confinement is one of the most serious measures which can be imposed within a prison and, as the Committee for the Prevention of Torture has stated, all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in deterioration of mental faculties and social abilities. Indeed, as the Committee's most recent report makes clear, the damaging effect of solitary confinement can be immediate and increases the longer the measure lasts and the more indeterminate it is. 208. At the same time, however, the court has found that the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment. In many states parties to the Convention more stringent security measures, which are intended to prevent the risk of escape, attack or disturbance of the prison community, exist for dangerous prisoners. 209. Thus, whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned. 210. In applying these criteria, the court has never laid down precise rules governing the operation of solitary confinement. For example, it has never specified a period of time, beyond which solitary confinement will attain the minimum level of severity required for article 3. The court has, however, emphasised that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely."

[80]The proposition at the end of paragraph 210 of Ahmad that solitary confinement, even in cases entailing relative isolation, cannot be imposed on a prisoner indefinitely was emphasised in the submission to us on behalf of the appellant. However, both Strasbourg and domestic case law indicates that it is a very major step from prolonged segregation to a breach of Article 3.

[81]Mr Armstrong candidly accepted that the decision of the Grand Chamber in Ramirez Sanchez “makes my life difficult”. The appellant in that case, generally known as Carlos the Jackal, was kept in isolation for eight years, but the Strasbourg court did not find that on the facts his Article 3 rights had been breached. This is not, of course, authority for the proposition that any period of segregation up to eight years is acceptable; but it does illustrate the limited value to be obtained from paragraph 210 of Ahmad.

[82]Shahid v Scottish Ministers

[2015] UKSC 58

;

[2016] AC 429

is an important domestic authority. Mr Shahid had been convicted of the racially aggravated abduction and murder of a 15-year-old boy. He had been the subject of numerous threats from other prisoners as a result of which he was placed in segregation for his own safety. The segregation orders were repeatedly renewed for a total of 56 months. He complained of his treatment amounting to inhuman and degrading treatment in contravention of Article 3, as well as a violation of his Article 8 right to respect for his private life. Lord Reed JSC noted the facts in his judgment. He said:- “36. The prison authorities were aware of the risks which segregation, especially for a prolonged period, can pose to mental health. The effects on the appellant were regularly monitored. Prison medical officers visited him at least once every seven days. They did not find that he was medically unfit to be segregated. He was examined in January 2007 by a psychologist at Barlinnie, who reported that he appeared to be coping well. When interviewed by a psychologist instructed by his lawyers for the purpose of these proceedings in May 2010, towards the end of his period in segregation, his demeanour indicated low mood. He reported anxiety about going outside the segregation unit, hearing voices, which the psychologist considered to be a reaction to his environment, and a loss of confidence. Without under-estimating the unpleasantness of the symptoms reported by the appellant, it is not suggested in the report, or in any other evidence before the court, that he suffered any severe or permanent injury to his health. 37. It is important to bear in mind that the isolation which he experienced was partial and relative. The fact that his segregation was imposed in the interests of his own safety is also relevant. There is no doubt that the duration of his segregation was undesirable, and indeed exceptional by the standards of prisons in the United Kingdom. There are also respects in which his conditions might have been improved, in particular by making greater provision for the pursuit of purposeful activities. The procedural protections available were not as effective as they should have been, particularly as a result of the prolonged delay in obtaining legal aid."

[83]The claim under Article 3 was nevertheless dismissed, notwithstanding the prolonged period of segregation. We shall return to the successful claim under Article 8 later.

[84]We asked Mr Armstrong whether he could point to any domestic cases in which segregation of a prisoner has been held to violate Article 3. The only one of which counsel before us were aware was Abu v Secretary of State for Justice

[2025] EWHC 3526 (Admin)

. In that case, decided in December 2025, Sheldon J noted that the ECtHR had held in Kudla that the mere fact that a prisoner was suffering from a mental health condition and that condition may have exacerbated his distress, anguish and fear was not sufficient to amount to a contravention of Article 3. He found that, despite the claimant being at significant risk of suicide, the prison authorities had failed to obtain an assessment of his mental health needs and the treatment required over a period of six months. Accordingly the judge found that Mr Abu had been subjected to inhuman and degrading treatment contrary to Article 3. The judge emphasised at [303] that this outcome would not have been the same without the claimant’s mental health issues.

[85]We were told that the Secretary of State has applied to this court for permission to appeal in Abu and it is therefore undesirable for us to say much about the decision. Assuming (without deciding) that it is correct in all respects, the facts are so different that it does not in our view lend support to the appellant’s case.

[86]Even applying the ordinary civil burden and standard of proof, we do not consider that the treatment of the appellant came anywhere near the minimum level of severity necessary for it to be characterised as inhuman or degrading treatment. The judge was right to find that there was no substantive breach of Article 3. Ground 3 – procedural requirements identified in Article 3 case law.

[87]The procedural requirements are essentially that a prisoner placed in segregation must have the opportunity to make representations when the initial decision is made (as to which there is no dispute in this case) and periodically thereafter. Mr Grodzinski is right in our view to submit that this ground is parasitic on Grounds 4 and 5. Since we have rejected both those grounds we consider that Ground 3 also fails.

Grounds 6 and 7 – Article 8

[88]The respondent conceded before McGowan J that on one narrow ground there was a breach of Article 8, namely that the CSCMC was not properly constituted per Bourgass

[2015] UKSC 51

;

[2016] AC 384

. The respondent accepts that the judge should have gone on, notwithstanding this concession, to consider the issues raised by the substantive Article 8 claim, namely whether segregation was justified by the respondent as a proportionate means of achieving the legitimate aim of the preservation of the safety of staff and of fellow inmates; and whether a less intrusive interference with the appellant’s Article 8 rights should have been found. We should therefore consider that claim for ourselves. Neither party suggested that this case should be remitted to the High Court for further fact finding.

[89]Ground 6 complains of the Claimant’s prolonged segregation being a violation of his Article 8 rights in two respects. The first that it was “not in accordance with the law”, not merely in that the decision-making committee was not properly constituted (as held in Bourgass)but also in that his treatment was not subject to adequate regular review. This procedural aspect of Article 8 does not in our view add anything substantial to the common law position which we have already considered in dealing with Grounds 4 and 5. We turn, therefore, to the substantive issue under Ground 6, which is the claim that the prolonged segregation was “not necessary in a democratic society” in that it was disproportionate.

[90]The period in respect of which the claim is made is from April 2021 to July 2023. For the greater part of this period (31 August 2021-30 May 2023), Mr Thakrar was in a DC and therefore segregated from other prisoners at HMP Belmarsh, where there is no CSC Unit. The respondent observes that the appellant was moved to Belmarsh at his own request as it was the nearest appropriately secure prison to the court where he was bringing a civil claim against the Secretary of State. The appellant’s response to this is to point out firstly that the Belmarsh period is not all the period for which he is making the claim; and in any event his request to be close to the court in which he was litigating did not absolve the Secretary of State of responsibility for breaching his Article 8 rights.

[91]This argument over responsibility for the appellant’s location at Belmarsh is subsidiary to the main issue under Article 8. The respondent’s case is that the appellant, to a large extent, brought his difficulties on himself by what was described as his policy of non-engagement or passive refusal, in particular his refusal to undergo a psychological assessment unless the respondent complied with a series of conditions which he imposed on his being seen by anyone other than a psychiatrist of his own choosing.

[92]Vavricka v Czech Republic (2021) 51 BHRR 41 (ECtHR GC) was cited by Mr Armstrong. The applicants were what would now be called anti-vaxxers. They were fined for failing to comply with an order to bring their children to a specified healthcare establishment with a view to having them vaccinated against polio, hepatitis B and tetanus. There was no question of the vaccinations being administered under compulsion. The Grand Chamber held that subjecting someone to a detriment for refusing to engage in a medical process was an interference with their Article 8 rights, but the interference was held to be proportionate. This decision does not assist Mr Thakrar’s case. The question for us is not whether the appellant’s Article 8 rights were engaged and interfered with by segregation, but whether the interference was disproportionate.

[93]Mr Armstrong argued, relying on Shahid [74] to [76], that the longer the time the appellant was segregated and kept from associating with other CSC prisoners, the more careful and intelligent the respondent was required to be in her approach to him, given the increasing risk to the appellant from the continuing segregation. This increasing risk to the appellant requires the court to be vigilant in assessing whether the measures taken were necessary and proportionate compared to what alternative courses of action may be available. Mr Armstrong suggested that it was for the respondent, acting through the prison authorities and the CSCMC, to be more creative in finding ways to assess and address the risks which had originally prompted her decision to segregate him. Having been through the notes and records, we do not accept this criticism: the examples we have given above demonstrate the MDT, in particular the psychologists, attempting on a number of occasions to engage the appellant by, for instance, coming to his cell door to meet with him or presenting him with different options for meeting with them. The appellant has rejected all these attempts, insisting that the only terms upon which he will engage are his terms set out in the “compact” which he has drafted.

[94]It may be true as a broad general proposition that for Article 8 purposes the longer that segregation continues, the more is required to justify it; but that is not enough in itself to lead to the claim succeeding. The contrast on the facts with Shahid is instructive. We have noted that Mr Shahid was in segregation for a total of 56 months, and that the reason for his being there was the threats of violence from other prisoners. The Supreme Court noted that no consideration was given by the prison authorities until more than four years had elapsed to whether he could be transferred to another prison where he might be less at risk; nor had any meaningful management plan for his integration into the mainstream prison population been produced during that period.

[95]In contrast with the appellant in Shahid (whose period of segregation was in any event more than double that of Mr Thakrar) Mr Thakrar has been assessed as being not a potential victim of violent attack, but a potential perpetrator. This is not simply because his original conviction was for a triple murder but because of his attack on prison staff in 2010. A prisoner given to outbursts of unpredictable violence plainly poses a risk to other inmates and to staff. The courts have repeatedly held that risk assessment of potentially violent prisoners is an area in which the expertise of the decision-makers is entitled to respect: see for example R (Sneddon) v Secretary of State for Justice

[2024] EWCA Civ 1258

;

[2025] KB 245

. We were not attracted by the argument, based on the wisdom of hindsight, that the fact that after a short period at HMP Manchester on single unlock he was in July 2023 placed on mixed unlock and therefore able to associate with other prisoners in the CSC unit demonstrated that a less intrusive measure could have been adopted in the first place.

[96]The heart of the appellant’s case on Ground 6 and also Ground 7 is that his non-engagement, and in particular his refusal to undergo psychological assessment except on his own terms, cannot justify “prolonged and indefinite” segregation. We do not agree. We note the important finding by the judge (at paragraph 145 of her judgment), that the decision-makers were not motivated by a wish to break the appellant’s resistance. They took the measure because in the absence of an up-to-date assessment by a prison service psychologist, any decision to permit the appellant to resume association with other prisoners would have been, in Mr Worsman’s words, fraught with risk.

Ground 8: Article 14

[97]The appellant claims that prisoners segregated under Rule 46 are in a relevantly similar position to prisoners segregated under Rule 45; and that the procedural protections relating to extension of segregation under Rule 46 are inferior.

[98]The respondent’s answer is that the two rules create separate frameworks for the authorisation of segregation which are different in a number of ways, but the protections afforded by Rule 46 are not inferior. The power to segregate under Rule 45 is conferred on prison governors who are authorised to apply it for up to 72 hours and then for periods of up to 14 days; if Rule 45 is to be used to segregate a prisoner for more than 42 days the leave of the Secretary of State is required and such leave may be renewed for periods of up to 42 days only. By contrast, prison governors have no power under Rule 46, which empowers only the Secretary of State or the CSCMC acting on her behalf to direct a prisoner’s segregation. Segregation under Rule 46 can only be renewed for up to one month at a time: Rule 46 therefore requires more frequent reviews by the Secretary of State than Rule 45.

[99]The respondent also points out that the initial making of a direction under Rule 46 is accompanied by the significant safeguard of the need for an initial decision by or on behalf of the Secretary of State. Following the initial direction there is also a detailed assessment process.

[100]We accept the submission that even if prisoners segregated under Rules 45 and 46 are in sufficiently similar positions to bring Article 14 into play, the protections afforded by Rule 46 are not inferior to those under Rule 45, and there is no discrimination for Article 14 purposes.

Conclusion

[101]We accordingly dismiss the appeal.