‘Use of segregation will achieve the correct balance between the requirement to maintain order and discipline and the respect for human dignity.’
‘There is a particular obligation on the Secretary of State consistently and transparently to apply whatever policy it is that he has adopted where decisions directly affecting the liberty of the subject are concerned.’
“My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by the way of additional procedural safeguards as will ensure the attainment of fairness.”
“In disciplinary proceedings which may result in punitive action, the full panoply of natural justice principles is appropriate and Parliament has provided that it should apply. Although the consequences of rule 43 are in some respects akin to those imposed as punishment the object of the rule is not punitive. Indeed, where it is invoked at the prisoner’s request it is specifically aimed at protecting him from illegal punishment at the hands of fellow prisoners. So, in the content of rule 43, although the governor and the regional director must act fairly and make reasoned decisions, the principles of natural justice are not invoked in the rules. Instead, alternative safeguards are provided to protect the prisoner’s rights. Segregation can only exceed 24 hours by authority from the Secretary of State or the board of visitors: rule 43(2). By rule 43(3) the governor may in his discretion terminate the segregation at any time. The prisoner has the right to see the governor and a member of the board of visitors: rule 8. The latter is required to hear any complaint or request the prisoner wishes to make: rule 95(1). The prisoner may petition the Secretary of State: rule 7(1).”
“The only issue is whether the way in which the scheme is administered falls below the minimum standard of farness. What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. My Lords, the Secretary of State properly accepts that whatever the position may have been in the past these principles apply in their generality to prisoners, including persons serving life sentences for murder, although their particular situation and the particular statutory regime under which they are detained may require the principles to be applied in a special way. Conversely, the respondents acknowledge that it is not enough for them to persuade the court that some procedure other than the one adopted by the decision-maker would be better or more fair. Rather, they must show that the procedure is actually unfair. The court must constantly bear in mind that it is to the decision maker, not the court, that Parliament has entrusted not only the making of the decision but also the choice as to how the decision is made.”
“In my judgment, the three cases of Wilson, Doody and Duggan (supra) make clear that the common law power, to imply standards of procedural fairness into decision making processes, is a flexible one and will ordinarily only be exercised in cases in which the rights of an individual are under threat. In the further case of Lloyd (supra) it was not the liberty of the individual which was immediately at risk but the risk that a financial penalty might be imposed. In the prison cases referred to above, the problem which confronted the courts was how to identify and categorise the circumstances which had to exist before the common law was prepared to intervene. All three cases concerned the possible delay to release dates. Standards of procedural fairness were held to require that where the consequence of the decision would adversely affect release dates, so that the liberty of the individual was at risk, as by delay in release, an opportunity to be heard must be accorded to the individual who should also know what was the nature of the case against him so that he could make informed representation against it. It is not hard, now, to understand how the courts arrived at the conclusion that where either the liberty of the individual was at stake, or his financial position was involved, concepts of procedural fairness demanded that he was able to make informed representations why a course of action, which might impact on either aspect of a person’s rights, should not be adopted. As a result it is not difficult to recognise that in cases, where the liberty or the financial interests of an individual is likely to be adversely affected, the common law, in the field of public law at least, will ensure that the individual concerned will have the opportunity of being heard. The problem in this case comes down to the question whether or not the applicants can show that allocation to a CSC does indeed impinge on their right to freedom in the sense already indicated.” …… “It was, in my judgment, correctly submitted that the mere fact of allocation does not adversely impact on the prospects of parole. In truth, as the respondent submitted, it was the prisoner’s conduct before and not as the result of allocation which was likely to be a factor which would affect the prospect of release on parole. It was pointed out that if the effect of allocation to a CSC was beneficial, in accordance with one of its stated purposes, then prospects of release were enhanced rather than damaged as the result of allocation. This observation is consistent with that part of the decision in Bowen which will be found at p22G-23C of the transcript. That this can be expected to be the position is confirmed in the affidavit of Mr Wheatley, paragraph 23. In conclusion, I hold that allocation of a prisoner to a CSC does not so affect his personal rights that the common law will intervene by requiring that he should have been given by standards of procedural fairness the opportunity to make representations against his allocation.”
“25. I have found the question of what should be the outcome of this appeal by no means easy to determine. I accept the importance of the prison service being able to make decisions which are operationally important without having to go through the technical requirements of providing opportunities for making representations. However, the rules of fairness and natural justice are flexible and not static; they are capable of developing not only in relation to the expectations of contemporary society, but also to meet proper operational requirements. The ability of the prison service to meet both their operational needs and the needs for prisoners to be treated fairly can usually be achieved within the panoply of the requirements of fairness. On the whole, the courts will require considerable persuasion that administrative convenience justifies a departure from the principles of fairness which would otherwise be appropriate in a particular situation. However, the arguments which are advanced by the Home Office in this case, as I understand them, are not only ones of administrative convenience. They refer to operational difficulties and operational problems which could undermine the security and discipline within the prison system. 26. It seems to me basic that a decision which is as important as the present decision to Mr Hirst should not be taken without giving him the opportunity to make representations and to have the matter properly considered as a consequence of his so doing. I think that there is some substance, but would not overvalue it, in the problem referred to by Lord Justice Simon Brown which arise in reconsidering a decision. However, regardless of that difficulty, it seems to me that a decision of this nature as a matter of fairness should not be taken until Mr Hirst had been fully involved. He should have been given a reasonable period to make representations before the decision was taken. He should have been given that opportunity after he had been told the grounds upon which it was appropriate to recategorise him.”
“In cases of segregation for reasons of good order or discipline it is often vital to move quickly on the basis of the information that is currently available. It is not always possible to give details of the information which has led to the decision being made. Examples of such situations are where there is evidence of a planned or imminent breach of security or where there is a risk to staff, other prisoners or the prisoner concerned.”