Hassan v Secretary of State for Justice [2011] EWHC 1359 (Admin)

Case No CO/5710/2010[2011] EWHC 1359 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/05/2011
Before
MR JUSTICE OUSELEY
Between
HASSANClaimantSECRETARY OF STATE FOR JUSTICEDefendant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Miss F Williams (instructed by The Howard League for Penal Reform) for the ClaimantMiss S Fatima (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 6 May 2011
Judgment
[1]The Claimant, a serving prisoner who at the relevant time was an inmate of HMP Full Sutton, was segregated there from 18 February to 12 April 2010 in circumstances which he says made his segregation unlawful. He says that there was no justification for it under the Prison Rules and Prison Service Order 1700 on Segregation, at least after 10 March 2010. Thereafter his Article 8 ECHR and indeed Article 3 rights were breached. He also contends that from the outset procedural safeguards, including those designed to protect inmates with mental health problems, were not applied. The safeguards, it was said, were integral to any segregation being lawful under the Prison Rules and Prison Service Order and, without their observance, segregation from the outset was a breach of Articles 8 and 3.

Legislative and guidance framework

[2]The Prison Rules 1999 S.I. No 1999/728 were made under the Prison Act 1952. Prison Rule 45 provides:
“(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 accordingly. (2) A prisoner shall not be removed under this rule for a period of more than 72 hours without the authority of the Secretary of State and authority given under this paragraph shall be for a period not exceeding 14 days but it may be renewed from time to time for a like period. (3) The governor may arrange at his discretion for a prisoner removed under this rule to resume association with other prisoners at any time, and in exercising that discretion 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.”
[3]The Claimant’s advisers thought at one time, understandably to a degree, that segregation had been ordered under a different Prison Rule, 53, pending inquiry into or determination of a disciplinary charge, but the Claimant accepted that in fact that provision had not been used.[4]Prison Service Orders contain general guidance as well as mandatory requirements. The Orders have the legal effect which policy guidance generally has in public law. Prison Service Order, PSO, 1700 provides supplementary policy guidance on the use of segregation.[5]PSO 1700 was fully reviewed in 2006/7 following reports which: “highlighted [that] the number of self inflicted deaths within segregated environments was disproportionate to that of the general population…Segregation should be used only as a last resort whilst maintaining a balance to ensure it remains an option for disrupted prisoners, this does include prisoners on an open [suicide and self harm watch plan] but only when they are such a risk to others that no other suitable location is appropriate and where all other options have been tried or are considered inappropriate. It is expected that segregation staff focus on helping prisoners manage their behaviour and problems rather than simply on punishment. It’s desirable that there is greater interaction between staff and prisoners which in turn will alert staff to any concerns on mental health issues and/or risk of self harm, as well as between segregation and wing staff which will assist planning for the prisoners return to normal location…Positive regimes and activities are encouraged as this will act as a diversion to the boredom and loneliness of segregation”.[6]PSO 1700 contains many other references to research that has been conducted into the mental health of prisoners held in solitary confinement and the negative effect which that can have. It is intended to make prison and health staff aware of the impact of segregation and of the importance of safeguarding and promoting the mental health of prisoners held in segregation.[7]PSO 1700 sets out the purpose and reasons for segregation:
“Outcome: Prisoners are only segregated for reasons of Good Order or Discipline when there are reasonable grounds for believing that the prisoner’s behaviour is likely to be so disruptive or cause disruption that keeping the prisoner on ordinary location is unsafe. • The decision to segregate a prisoner is reasonable and appropriate. See example occasions where segregation might be appropriate. • The competent operational manager/Duty Director considering or authorising segregation assesses whether the situation could be better addressed by adopting alternative arrangements such as transfer to another wing, closer supervision on ordinary location, transfer to another establishment etc. • Segregation under Rule 45 (YOI Rule 49) GOoD is for the shortest period of time consistent with the reason for separation in the first place.” • The decision to segregate a prisoner is reasonable and appropriate. See example occasions where segregation might be appropriate. • The competent operational manager/Duty Director considering or authorising segregation assesses whether the situation could be better addressed by adopting alternative arrangements such as transfer to another wing, closer supervision on ordinary location, transfer to another establishment etc. • Segregation under Rule 45 (YOI Rule 49) GOoD is for the shortest period of time consistent with the reason for separation in the first place.”
[8]The level of restrictions must be:
“no more than are necessary to protect the prisoner concerned or to maintain the good order or discipline of the establishment.”
[9]The regime is to be as follows:
“The regime for segregated prisoners (under Prison Rule 45 YOI 49) should be as full as possible and only those activities that involve associating with mainstream prisoners should be curtailed. In-cell education or work that could be done in cell (e.g. packing) should be encouraged. Access to activities such as domestic visits, legal visits, use of the telephone, canteen, exercise and shows should be comparable to those for a prisoner held on normal location. Certain regime elements, for example, TV, radio/CD player, association within the segregation unit, PE/gym access could be used as incentives; rewards for prisoners that comply with the targets set by the Segregation Review Boards.”
[10]On initial entry into a segregation unit a registered nurse must complete what is called a “Health Algorithm” as part of completing the “Initial Segregation Health Screen”. The health algorithm is a flowchart of questions designed to lead to a conclusion by the nurse on whether there are health care reasons why a person should not be segregated or whether he requires health care intervention. PSO 1700 requires a doctor to visit each prisoner in segregation as often as their individual health needs dictate and at least every three days. There has to be an assessment by a registered nurse or health care officer on all other days which means that a member of the health care staff has to visit the prisoner on a daily basis and assess his physical, emotional and mental wellbeing and consider whether there are any apparent clinical reasons to advise against continuation of segregation.[11]A daily history sheet has to be completed and there are detailed requirements as to what that sheet should include. It is to be used to record any significant events or observations and the designated officer should make at least 3 daily entries as well as recording any significant discussions between staff and the prisoner and visits to the prisoner. All prisoners in the segregation unit must be observed according to PSO 1700 by an officer at a frequency relevant to the individual circumstances. The segregation officer should engage in dialogue where practical with the prisoner when making observations.[12]A decision to continue segregation under Prison Rule 45 must be taken by the Segregation Review Board; this Board must have regard to the individual circumstances of the prisoner and aim to return him to a normal location as soon as it is practicable to do so. His safety whilst in segregation is of paramount importance according to PSO 1700.[13]The initial Segregation Review Board has to be held within the first 72 hours of a prisoner being placed in segregation and subsequent review boards have to be held at least every 14 days. PSO 1700 provides for the composition of such a Board. It should include a Chairman, a health care representative, the Segregation Officer, the Wing or Unit Officer, Chaplain, Psychologist, and for at least part of the Board, the prisoner himself. It is not mandatory that a member of the Independent Monitoring Board attend the Review Board but it is highly desirable that one should do so. Those attending the Boards should, where it is safe to do so, offer the prisoner an opportunity for private interview between reviews to determine whether there is anything they can contribute to his care or management. This includes in particular the member of the Independent Monitoring Board and the Chaplaincy.[14]PSO 1700 provides for what the Board should consider. It needs to look at the initial reason for segregation since that is an important element of defining what behaviour or attitude needs to be addressed before the prisoner may return to normal accommodation. The prisoner should have been set certain behaviour or attitude targets at the previous review in order to start to work towards normal accommodation. That should be discussed. The Review Board needs to consider any concerns that have come to light about how the prisoner is coping with segregation, particularly because of mental health and self harm concerns. PSO 1700 highlights that a person’s mental health “is very likely to decline when they are kept in segregation”. In particular it says that “those segregated for more than 30 days should be subject to care plans that detail how their mental wellbeing is to be supported”. Prisoners should be returned to normal location “as soon as the Review Board feel that it is appropriate and safe (for the prisoner, staff and other prisoners) to do so”.[15]After the Board has reached its conclusion, the prisoner is told when the next Review Board will take place so that he is made aware of the system of segregation. There may be a direct return to ordinary location or a phased return. The Board should set some targets for the prisoner so that he can start to demonstrate a willingness and ability to change the behaviour that led to his segregation in the first place. These targets are to be reasonable, comprehensible, clearly defined, relevant to the reason for segregation in the first place and capable of completion within the period before the next Review Board. Boards may award improvements and privileges as an incentive to better behaviour or remove rewards and incentives.[16]The task of the members of the Independent Monitoring Board is to satisfy themselves that the prison has followed the procedures laid down for segregation and that the decisions in individual cases are reasonable. They have to be notified of segregation within 24 hours and should speak to the prisoner, scrutinise the paperwork, and speak to the manager who authorised initial segregation if they have any concerns. They should see the prisoner on each rota visit and their observations or views should be recorded. They do not participate in the actual decision-taking on segregation, but if the member has a serious objection to continued segregation he should approach the duty governor and, if still concerned, should follow the procedures laid down for an IMB objection to continued segregation.

The facts

[17]The Claimant is 23 years of age and is an Iraqi Kurd who came to the UK as a minor seeking protection as a refugee. His mother, father and sister were killed in Iraq; his mother was shot dead in front of him in 1998 when he was about 10. He was held prisoner and tortured in Turkey. He has a history of self harm and attempted suicide but has not harmed himself nor attempted suicide since around June 2008 and certainly not after January 2009. He has been diagnosed as suffering from moderate Post Traumatic Stress Disorder, PTSD, and moderate depression. He is serving two indeterminate sentences for public protection, one for attempted murder and one for wounding with intent.[18]The circumstances of his offending and his behaviour in prison before this period of segregation were largely ignored in the Claimant’s submissions which focused on his mental health; but as Ms Williams, who appeared for him, accepted, the justification for initial and continued segregation had to be judged in the light of what was known about this prisoner.[19]The Claimant was convicted and sentenced on 7 September 2007 to an indeterminate sentence for public protection with a tariff of 8 years and 8 months for attempting to murder a person unknown to him whom Mr Hassan and a co-Defendant subjected to a brutal and sustained attack on a public bus. The victim suffered life threatening injuries, stab wounds to the neck and chest. The Judge in sentencing stated that the victim was only alive because of the swift action of other members of the public, the close proximity of the hospital and skill of the doctors. He said that Mr Hassan had been determined to have an evening’s sport with an innocent member of the public and demonstrated not only the intention but the ability to kill.[20]The Claimant’s next offence occurred in custody. Mr Hassan was serving his first sentence at HMYOI Aylesbury when he attacked a member of the prison education staff. On 16 April 2009 he received a further sentence of imprisonment for public protection with a tariff of 9 years and 6 months for wounding with intent. He had previously been excluded from a lesson and segregated because of his problematic behaviour. He attacked the teacher of that class from behind, hitting him over the head, neck, shoulders and back, with a weapon made from a prison mirror. When arrested, Mr Hassan said that “the victim got what he deserved”.[21]Mr Marley, the Head of Residence at HMP Full Sutton, described Mr Hassan in his first witness statement as “a very difficult prisoner with an extremely poor record of custodial behaviour demonstrated by a propensity for violence with a number of adjudications for acts of violence”. Mr Marley described his behaviour in custody as poor “with evidence to suggest that he is a volatile, unpredictable and dangerous young man who has numerous adjudications for threats and assaults against staff”. This had led to him being transferred between numerous establishments, regressing to high security conditions. He had been in 2 YOIs and 2 prisons before his regressive transfer to HMP Full Sutton in June 2009. Since August 2007 he has had over 30 adjudications, the most serious of which included 5 for assault, 8 for damaging prison property, 2 for fighting and 1 for trying to set fire to the prison. At HMP Full Sutton he already had been located in the segregation unit on a number of occasions.[22]The incident which led to his segregation on 18 February 2010 was recorded as “believed to be involved in an assault of another prisoner on A wing”. This therefore involved segregation for good order or discipline. The appropriate form giving that reason was completed and a copy provided to the Claimant. He was told that his case would be reviewed the next day, and that he would be visited every day by a governor’s representative, a chaplain and a member of health care. The form listed the facilities and privileges which he would receive. It was signed off by the Competent Operational Manager.[23]At one point Ms Williams contended that segregation was unjustified because there was no evidence that the Claimant had been party to any assault, since the alleged victim did not complain to the police and told them that he would not cooperate. Accordingly, there was no adjudication against the Claimant. However, there was obviously at least a sound evidential basis for prison staff reasonably to believe that he, with a group of other inmates, had assaulted another prisoner. This was the case, not just at the initial segregation but continued throughout its duration; the absence of charge or adjudication could not remove, and never has removed, the probative value of the evidence which did exist. CCTV footage recorded the victim entering his own cell unharmed. It recorded a group of people including the Claimant later entering this cell and then leaving it. No one subsequently entered but a prison officer going to the cell noticed that the victim now had head injuries, and said that he had been assaulted in his cell by people he either did not know or was not prepared to name.[24]The Initial Segregation Health Screen and Health Algorithm were completed on the same day, and within an hour of his being segregated. Before completing the algorithm, the nurse should read the clinical record and any suicide watch/self harming plans. The nurse ticked the box at the conclusion of the algorithm that no health intervention was required at that time, and not the alternative box saying that there were health care reasons not to segregate. The nurse could only tick the box he did, if he concluded that the prisoner would be able to cope with a period of segregation. He also circled the answer “No” to the question “are there any apparent clinical reasons to advise against segregation at this time?”[25]Segregation was reviewed on 19 February 2010, and the Claimant attended the Review Board which authorised his continued segregation. It noted that he had been compliant with the segregation regime, and that there were no concerns about his mental health or risk of suicide or self harm. Annex G to the form authorising continued segregation said that he was to remain in segregation because “You are suspected of involvement in a serious incident that took place on A wing 18/2/10. This matter has been reported to the police.” Mr Hassan received a copy of Annex G. This also set out the behavioural targets for him to achieve by the next review on 24 February 2010. Briefly, these were to conform to the unit regime, to use its facilities, to demonstrate a positive attitude towards visitors and staff, and to maintain a good standard of hygiene. He was informed of the daily visits as before, and was told to talk to visitors, staff, or a member of the Independent Monitoring Board if he had any concerns, and that he could do this in confidence.[26]On 20 February 2010, the first adjudication hearing into the allegation of assault took place. The preliminary conditional evidence was read out; and the Prisoner Copy summarises the evidence as I have done. He had nothing to say at that stage but was advised to seek legal advice while the police were investigating the matter. The precise date at which the police discontinued the investigation following the victim’s refusal to assist is not known; it may have been during the period of segregation; but the Governor decided not to proceed with the adjudication on 28 June 2010.[27]On 20 February 2010, the Claimant and other prisoners in the unit, including others who were also segregated following the assault on the prisoner, each smashed up their single occupancy cell furniture and fittings in what the prison staff regarded as a concerted act of indiscipline. The Claimant was observed threatening staff and inciting other prisoners to use the contents of the smashed up cells to make weapons with which to attack prison officers. He was threatening and non-compliant, requiring restraint, when officers moved him the next day to another cell so that the one he had smashed up could be cleared. He was charged on 20 February with damaging prison property and admitted the charge at the adjudication on 16 April 2010.[28]The Initial Segregation Health Screen and Health Algorithm were completed on 22 February just as it had been on 18 February. The Wing Manager prepared a risk assessment for the Claimant’s future location. The reasons for the assessment included the specific assault as well as links to other assaults on prisoners, and his association with the more problematic prisoners on the wing. His behaviour on A Wing was generally poor, he was a problematic prisoner who had caused disruption on two other wings at Full Sutton where he had been located, leading to segregations and transfer to other wings in order to disrupt associations and to give him a fresh start. His participation in sentence planning had been limited by his disruption and frequent segregation. He was described, since arrival at Full Sutton, as “unpredictable, volatile and violent…tending to attach himself to the extremist Muslim prisoner groups”. His behaviour at Full Sutton mirrored his behaviour at the other prisons he had been in. He was said always to be actively involved in any disruptive behaviour, and repeated periods of segregation and wing transfers had not deterred or stopped this behaviour. He had now been on all wings at Full Sutton and because of the serious nature of the recent incidents, “he should remain segregated for a considerable period. It is noticeable since the removal of Hassan and others; the atmosphere on the wing has improved considerably with prisoners comment on feeling safe.” This risk assessment is discussed in front of the prisoner at the Board, and he can request a copy.[29]The Board reviewed and authorised his continued segregation on 24 February; unsurprisingly the stated initial reason for segregation remained as it had been on 18 February. The Claimant chose not to attend, but the observer from the IMB was present. Mr Hassan’s attitude was noted as non-compliant, with a particular level of security required; the smashing of the fixtures and fittings of the cell was recorded. In the section concerning mental health, it was recorded that he remained under the treatment of the mental health team, but there were no further concerns. He was handed Annex G to this form which told him that the next review would be on 10 March 2010, explained his facilities and privileges, continued the same behaviour targets, and told him that the reason he was to remain in segregation was that he was suspected of involvement in the assault on the prisoner.[30]The Claimant’s segregation was reviewed again by the Board on 10 March 2010. Again the IMB member was present but the Claimant chose not to attend. Ms Williams attached significance to the comment noted on his behaviour and attitudes that the Claimant had been compliant with the rules and regime since his last review, had come off the higher security level and was on the basic level of incentives and privileges. No concerns were noted about his mental health, and his next review date was set for 24 March 2010. Annex G followed the same pattern as before, except that the reason for his remaining in segregation was not just the suspected assault but his involvement in concerted indiscipline while in the segregation unit. This referred to what he did on 20 February. On 9 March, replying to a letter from the Claimant’s solicitors of 2 March, the Prison Service said that the reason for segregation was suspicion of his involvement in the assault on another prisoner, and continued due to his act of concerted indiscipline. His targets now included maintaining a period of positive behaviour. This, submitted, Ms Williams, was the date by which it was clear that segregation could not be rationally justified within the segregation policy framework of PSO 1700, given what it said about the impact of segregation on mental well being, and the need for it to be for as short a period as necessary.[31]There was a further wing risk assessment for this Board. Much the same points as had been made in the earlier assessment were repeated in different language. He appeared to have little regard for the safety of others. There had been some improvement in his behaviour of late, “but information suggests that he & other prisoners in the segregation intend to cause further disruption and have singled out staff for assaults. Until Mr Hassan provides a sustained period of acceptable behaviour, he should remain segregated as there is evidence to suggest that he will continue to cause disruption when he returned to the wing.” The purpose behind this concerted action was believed to be to take cells out of action so as to force a transfer to another prison. The Head of Residence also recommended that the prisoners with whom he associated be transferred or located on different wings.[32]The Initial Segregation Health Screen and Algorithm for this Board, completed by a different nurse, were completed in a slightly different manner, although the conclusion was the same as that on the previous forms. The nurse ringed all but one of the boxes en route to the answer that the prisoner would be able to cope with a period of segregation, and that accordingly there was no present need for any health care intervention. The one not ringed left it unclear whether the route to that conclusion was(1) via the answering “no” to the question whether the inmate had self harmed in this period of custody, or was on a self-harm watch programme or was taking any anti-psychotic medication, or was(2) via answering “yes” to that question but “no” to the question whether the prisoner’s mental health would deteriorate significantly if segregated.[33]The Claimant’s next review by the Board was on 24 March 2010. He was noted as compliant with unit staff and regime but had very little interaction with them. The reason for the continued segregation was his suspected involvement in the assault; no mention was made this time of the concerted indiscipline. Segregation was to continue until the conclusion of the police investigation. Annex G, which was what Mr Hassan was given, simply referred back to the assault. He chose not to attend the Board, but a member of the IMB did. The Initial Health Segregation Form and Algorithm was filled in by the same nurse who had filled in the previous form, and in the same way.[34]The Claimant attended the next review on 7 April 2010, as did an IMB observer. He had been “compliant more settled in recent weeks, makes use of segregation unit facilities”. It was noted that there were no mental health concerns. That item was left blank on the previous review. His target was to display positive behaviour. He was told on Annex G that he was continuing in segregation because of his suspected involvement in the assault on another prisoner. A third nurse filled in the Initial Segregation Health Screen and Algorithm: this time the box was ringed showing that the route to the conclusion that he was able to cope with segregation was that he had not self-harmed in this period of custody. This was the same way in which that nurse filled it in at the time of the adjudication for smashing up the cell.[35]The Head of Residence reported in the risk assessment that Mr Hassan’s behaviour “of late has shown a marked improvement, he cannot be described as a model prisoner but the limited inter-action he has with staff are now more compliant with less challenges. Mr Hassan needs to continue with this settled behaviour and with the transfer of some of his associates appears to have settled Mr Hassan. However, his future location needs to be…given serious consideration & recommend that he is not located with the prisoners named...”.[36]On 12 April 2010, before the next scheduled Review Board, the Head of Residence reviewed the Claimant’s segregation and returned him to normal location on A Wing. He reached that decision, as he was empowered to do, on the basis that the victim of the assault had been transferred to another establishment, was no longer at risk from the Claimant or the Claimant’s associates, and because of the degree of compliant and settled behaviour shown by him.[37]The Boards thus always comprised an Operational or Duty Manager and a health care representative. An IMB member and one or more psychologists were present at all review Boards except on 19 February. The Claimant received daily visits from a nurse or doctor. None of the healthcare staff provided any information to the prison staff that there were any concerns over the Claimant’s mental health. I accept what Mr Marley says in his Second Witness Statement that had the healthcare staff had any private contact with the Claimant which caused them concern over risks of self–harm or suicide, they would have told prison staff what they needed to know to institute the relevant prevention regime or “suicide watch”. But there were no such contacts recorded by them. And it is clear from the Claimant’s evidence that he raised no such concerns with them either.[38]The Claimant was seen on a daily basis by the Duty Governor and a member of the Chaplaincy Department. A member of the IMB saw him on nine occasions. The detailed records show that he exercised and showered regularly, but not daily. I accept Mr Marley’s description of the segregation regime, where it differs from the Claimant’s account; it is fuller and balanced. He was entitled to some visits and telephone calls and maintained contact with his solicitors; he could have reading and writing material, although segregated prisoners had to collect food one at a time. I also accept Mr Marley’s account of the fixtures and facilities in the cell, including a cell call system, sanitation, and anti ligature beds and windows.[39]The Claimant was returned to segregation again on 2 June 2010 following a serious assault with a weapon on another prisoner for which he was charged with causing grievous bodily harm, and obstructing a prison officer who tried to intervene during the incident. The Claimant was moved to HMP Long Lartin in December 2010 where his assaults on prison officers have led to further segregation.

The mental health evidence

[40]The Claimant had not harmed himself, nor attempted suicide since his transfer to HMP Full Sutton, was not on any special watch there, nor taking anti-psychotic medication. But he had previously made two serious suicide attempts and there had been several episodes of self-harm in other institutions. These two undoubtedly serious attempts at suicide were in 2005 and 2006 when he heard of the deaths of his father and sister, both before he committed the attempted murder. He was not therefore in custody. There were episodes of self harm in custody, some of which he describes as attempts at suicide, attributed to imprisonment bringing back painful childhood experiences. He attributed two episodes to his first IPP sentence and the refusal of permission to appeal his conviction. He describes five further incidents, all before his conviction for assaulting the teacher in prison for which he received a further indeterminate sentence. There appear to have been no further such incidents after he left HMYOI Aylesbury in June 2008.[41]While he was at HMYOI Aylesbury in March 2008, a Sentence Planning and Review Report was produced by Ms O’Rourke, a Prison Service Forensic Psychologist. She did not disagree with earlier diagnoses of PTSD arising from his experiences in Iraq and Turkey as a child. But she said that all healthcare staff were agreed that the recommended current treatments for PTSD, EMDR and trauma focused cognitive therapy, were not suitable at this stage “due to Mr Hassan’s emotional instability. It is recommended practice to concentrate on the managing of risk to self or others before treating PTSD.” He would find it difficult to engage in treatment because of his impulsivity and poor behavioural controls. He had no meaningful insight into his offending behaviour. Mr Hassan had also received medication for depression, and had been in hospital for 2 months with mental health problems. She set out the factors relevant to the risk of suicide or self-harm by the Claimant; warning signs included wing moves, and feeling lonely. He could differentiate between times when he had a genuine desire to kill himself, times when he was bored, or experiencing flashbacks or simply feeling impulsive. He coped with these feelings, as the various “suicide watch”, or ACCT, plans opened for him showed, by reading, trying to stay occupied and talking to staff. Beyond regular monitoring, no particular recommendations were made about this.[42]Each review Board following the required practice would have considered the Claimant’s mental health. No healthcare representatives or IMB, chaplaincy or other visitors expressed concern at the effect which this period of segregation was having on his mental health, or which earlier periods might have had. If a healthcare representative had done so after the provision of information in confidence by the Claimant, I accept that the necessary information would have been passed to prison staff for them to act in accordance with the requirements of PSO 2700 “Suicide Prevention and Self-Harm Management”, but there is no evidence of any such information being passed to prison staff. None of the daily sheets prepared while the Claimant was in segregation mentioned any intentions about suicide or self-harm, let alone any actual attempts. The Claimant did not suggest in evidence that he had had any feelings about or had told anyone about suicide or self-harming during this period of segregation, or had made any attempts at either.[43]The Claimant’s solicitors complained that the Prison Service had not produced, for the purposes of this action, his Inmate Medical Record. This was in response to the note on the Board’s Authority for Continued Segregation on 24 February that the Claimant remains under the Mental Health In-Reach Team, but there were no further concerns about his mental health. I accept that this means no more than that a member of the MHIRT was part of the health care team visiting that day. I am satisfied the Claimant has misunderstood or exaggerated the importance of this; at all events, he has given no evidence of any treatment which he says he received. The prison staff do not have access to his medical record and could not disclose it. The Claimant does however and his solicitors could have gone through the relevant procedures for obtaining it. Although the Claimant was not and was not entitled to be legally represented at the review boards, he was able to maintain contact with his solicitors from segregation.[44]The Claimant’s witness statement was dated 31 August 2010, after the grant of permission and after the Defendant’s detailed grounds of resistance had been served, pointing out that the burden lay on the Claimant to establish that his Article 3 and 8 ECHR rights had been breached. The Claim had relied on an inaccurate account of medical visits, and criticised the absence of detailed consideration of the Claimant’s mental health and of the care it was said he needed in segregation and had been recommended to receive anyway. The description of the segregation regime and unit in the Claimant’s witness statement is not accurate; I prefer the evidence of Mr Marley, as I have said. What is striking about it however is that only 2 paragraphs of the 40 paragraphs in the statement deal with the impact of segregation, and none suggest that he had intimated to prison or medical staff any suicidal or self-harming thoughts or indeed had had any at all. He said that it was difficult to explain the effect which “these periods of segregation” had had. So he was dealing with other periods of segregation as well, and had already been returned to segregation on a subsequent occasion. It had taken away his dignity. He could not raise important issues with prison staff because they would just put him in segregation for no reason; he was treated “like an animal”. He just lay on his bed, thinking and sleeping; he had flashbacks and bad dreams; he found it hard to concentrate, and became forgetful, angry and distrusting.[45]No medical evidence in support of the claim was produced until January 2011, by which time the Claimant had had to be moved to HMP Long Lartin, and where he had spent further time in segregation. It was produced in response to the Detailed Grounds of Resistance which pointed out that he had provided no medical evidence. The Claimant produced a Psychological Assessment Report from Dr Troy Tranah, a consultant clinical psychologist. He said that the Claimant found segregation a “distressing experience”; this was a general observation rather than one directed to the particular effects of the period at issue.[46]Dr Tranah diagnosed moderate PTSD and moderate depression, and was critical of the Claimant’s treatment. Dr Tranah referred to research on the general problems which solitary confinement can have on mental well-being, although not differentiating between the effects of different forms of regime, while acknowledging that the nature of the regime will influence its effect. He did not analyse the regime applied at HMP Full Sutton to Mr Hassan. He made general recommendations, but did not refer to the conclusion of the report which he had from Dr O’Rourke on the unsuitability of treatment until the Claimant’s behaviour had been addressed. He thought that 7 weeks segregation was excessive, but does not say by what measure it was excessive and in particular why it was excessive in relation to the offending and prison conduct of the Claimant - which does not really feature in the report at all. He provided no focussed evidence to support his opinion that repeated and prolonged periods of segregation “were likely to have exacerbated these psychiatric conditions [moderate PTSD and depression] and contributed to Mr Hassan’s emotional and behavioural difficulties”. The evidence was largely not directed to the effect of the period of segregation at issue, and probably could not be in view of the subsequent periods of segregation.

Was segregation justified?

[47]I am entirely satisfied that there can be no rational challenge to the original decision that Mr Hassan should be segregated. He had a record of violence in prison, of very disruptive behaviour, and there was clear evidence of his involvement in an assault on another prisoner. The evidence is clear that the Prison Rules and the regime prescribed in PSO 1700 were followed and applied. The only argument was that PSO 1700 required that he be returned to a normal location after the shortest possible time in segregation and that should have happened earlier, and by 10 March 2010 at the latest.[48]The challenge to the justification for the decision that segregation should be continued, and for the period it lasted is misconceived. Permission was granted on the basis that there was an arguable case that the reason for the continued segregation had been the continuing investigation into the assault, and that that was inconsistent with the period in segregation being the shortest that was necessary in the interests of good order and discipline. The Deputy Judge, in granting permission, was also concerned at why so long a period of compliant behaviour was necessary and why Mr Hassan had been returned to normal location between reviews.[49]The lawfulness of the decision as to whether the time had come to return Mr Hassan to ordinary location is to be judged by Wednesbury principles. That decision is whether segregation needs to be continued, conformably with PSO 1700, which requires it to last no longer than the shortest possible time, obviously consistent with the reasons for the segregation in the first place. Although segregation may involve questions of human rights, and where they do that may call for a closer scrutiny of such decisions, the Court’s judgment of the lawfulness of these decisions has to recognise the difficulties which a prisoner may pose for the safe running of a prison, the experience which the Governors have of dealing with them, and their knowledge of the risks of and limitations on what may practically be done. Their expertise, knowledge and experience in a testing environment warrant respect. I was struck by the absence of understanding shown in the Claimant’s Grounds, Skeleton and oral arguments of the difficulties which Mr Hassan posed for the safety of other prisoners and staff, and to the good order and discipline of the prison.[50]However, it is clear and accepted that segregation was originally ordered and was then maintained on the basis that there were reasonable grounds for believing that Mr Hassan’s behaviour was likely to be so disruptive or to cause disruption that it was unsafe to keep him on ordinary location. Ms Williams accepted that Prison Rule 53 had not been invoked here. The safety at issue was not just Mr Hassan’s but that of prison staff and other prisoners.[51]I have already explained the evidence that linked Mr Hassan to the assault, and the fact that the victim refused to identify his assailants, and so the police eventually dropped the investigation, did not diminish that evidence. The suggestion that the Claimant remained segregated on the basis of an unsubstantiated allegation is simply and wholly wrong. Not surprisingly the initial reason for segregation always remained the initial reason for segregation; the surprise would have been if that initial reason had been superseded by another initial reason. This was a serious incident, especially given the background of assaults in prison and fighting, and the serious attack on a teacher in prison. Mr Hassan knew very well what the reason was from the outset, and had the preliminary conditional evidence read to him on 20 February 2010.[52]Ms Williams accepted that it was obvious that the review Boards would consider his behaviour in segregation as well, when deciding whether it should continue. It is inconceivable that they did not, and it is inconceivable that they did not regard what he did on 20 February as a very serious additional reason for continuing segregation until there had been a prolonged period of compliance with the unit’s requirements, and meeting of the targets set for him. This incident involved not merely the destruction of fixtures and fittings in his own cell, but concerted endeavours with others in the segregation cells to destroy their own cells, and intimidating staff. I am satisfied that continued segregation was not an act of punishment for the assault or for the concerted smashing up of the cell, and intimidation.[53]Mr Hassan’s solicitors enquired why his segregation was continuing on 2 March 2010, and were told in the letter of 9 March that the assault and the events of 20 February were the reasons, in the sense that they showed why the good order and discipline of the prison required his segregation.[54]While I accept that it would have been better for the reasons given on the Annex G handed to Mr Hassan always to have referred to the events of 20 February as part of the reasons for continuing segregation rather than, save on one occasion, merely repeating the initial reason, there can be no doubt about the justified part which those events played in the decision that segregation should continue. There is also no doubt that the Claimant personally would have realised that those events were part of the justification for his continued segregation, even before his solicitors were told in the letter of 9 March 2010. This is not a question of the provision of formulaic reasons, but short and more complete ones. The reasons for continued segregation include not just the events of misbehaviour in segregation, but the need to show progress towards meeting the targets set by the review Boards. I would regard that as obvious.[55]The reference on 24 March 2010 to segregation continuing until the conclusion of the investigation into the assault, reflects in a terse way, the sort of problems which arise when one prisoner is assaulted by others. The police seek to investigate and try to obtain what information they can from inmates who for obvious reasons may be disinclined to help, and the more so if the alleged assailants are back on normal location. It is facile for Ms Williams to suggest that the victim should have been transferred earlier in her client’s interest, or that the others could have been transferred earlier. Mr Hassan had already been transferred out of two other wings in Full Sutton. There is no evidential support for these suggestions and they provide no basis for concluding that the decisions of those who, in the interests of all prisoners and the safety of the staff, actually have to deal with good order and discipline in a prison which contains those such as the Claimant, were unlawful.[56]Ms Williams’ contention that by no later than 10 March 2010, Mr Hassan should have been returned to normal location and that his segregation thereafter was unlawful is untenable. It was based on the reference in the notes for the review Board that Mr Hassan had been compliant with the regime.[57]The duration of the period of compliance, evidencing a sufficient change in behaviour and attitude for a return to normal location to be possible, is very much a matter for the judgment of the Governor and Board. Given Mr Hassan’s background and behaviour in segregation, it was entirely reasonable for the Board to take the view that a longer period of compliance was required before he could be returned. There was nothing unreasonable let alone unlawful in the view that he should not be returned until he was returned, that that was the earliest possible time; and there would not have been anything unlawful in the longer period in segregation that the Board envisaged. Bearing in mind the offences which he had committed, especially in prison, his record of adjudications and disruption, the reasonably suspected assault followed by the violent disorder in segregation, and belated grudging compliance, there does not appear to be anything disproportionate in a period of just over 7 weeks in segregation in order to maintain good order and discipline in the prison.[58]The Deputy Judge referred to the fact that the handwritten target set on 10 March, that he should maintain a period of positive behaviour, was not added again on 24 March 2010. In the light of the other targets, I do not think that much significance can be invested into that change.[59]The fact that the Governor exercised his powers, before the next review Board, to return the Claimant to normal location reflected the transfer of other prisoners, as well as a longer period of compliance. I do not think that that can show that the Claimant was kept in segregation unlawfully. Rather it shows that his location was kept under close review and ended as soon as it could be.[60]The Claimant’s arguments exaggerate his mental health problems, and under state, to the point of purblindly ignoring it, the effect of his behaviour on the safety of others and the order and discipline of the prison. There was no evidence during his time in segregation that it was having any adverse effect at all on his mental well-being, and in reality there is none afterwards either from the Claimant or from his psychologist.[61]I am satisfied that the snippets of documentation which the Claimant relies on to argue that segregation could have been continued for administrative convenience or was unlawfully continued because of reliance on intelligence about his intentions which Ms Williams argued had not been proved, do not amount to any point of substance. The position is quite simple: this was a very disruptive and violent prisoner who needed time to show that he could comply with the necessary discipline in the prison over a sustained period.[62]The Health Algorithm would have been better filled in following a consistent pattern, and still better with the nurses showing routinely the route to the decision since there was more than one route to reaching the conclusion that the inmate could continue to be segregated. But those are ways of avoiding unnecessary misunderstanding and litigation, and not points of unlawfulness in segregation.

Breach of Articles 3 and 8 ECHR

[63]For all the recitation of authority, domestic and ECtHR, and for all the references to papers on the effects of segregation of one sort or another on prisoners, this claim simply fails on the facts. It cannot be suggested that the regime required in this segregation unit breached either Article 3 or 8; see for example R(Bourgass) v Secretary of State for Justice [2011] EWHC 286 Admin. Nor is there any basis for suggesting that the regime was not applied to Mr Hassan.[64]I have already referred to the review Board system, its composition, the role of the IMB, the daily visits from the chaplaincy, a member of healthcare, and a governor. The Claimant saw a member of the IMB 9 times. He showered and exercised regularly. He was provided with the means to keep fed, clothed, to attend to his personal hygiene, and to clean his cell. He could purchase goods on a weekly basis, and read books from the Library trolley. A variety of other items is allowed in the cells, including writing material, newspapers, radios and religious artefacts. There is a system of privileges and incentives which can ease the regime. He had access to his lawyers, he could make a telephone call at least once every three days, and could have two one hour visits a month, with more depending on the level of incentives and privileges earned. Conditions were not remotely near what would breach Article 3.[65]In my view, this regime did not interfere with the Claimant’s Article 8 rights as a prisoner sufficiently significantly as to require justification. But there clearly was justification, and in so far as Ms Williams’ Article 3 or 8 arguments depended on the want of justification, it fails for the reasons given under the first heading. In so far as she relies on the Claimant’s mental health, as showing that Article 8 was breached or even Article 3, there is no evidence of any significant adverse effect on him at all, let alone one which could not be justified by the reasons which I have referred to.[66]The evidence about the steps taken to consider his mental ability to cope with segregation showed that it was considered daily, and at Boards. There were no problems. The Claimant raised none directly or indirectly. There was no evidence of recent self-harm; and in fact there were no episodes of it while in segregation, a feature of prison life with which he had already had some acquaintance. There had been none for over eighteen months. The subsequent evidence produced from the Claimant shows that he disliked being in segregation, but he did not produce any evidence about any effects short or long term arising from this period in segregation. The report from Dr Tranah, belated as it was, does not deal specifically with this period of segregation, nor the circumstances which led to it and which plainly can affect any conclusion about whether a period of segregation is excessive, nor the conditions of the regime which he acknowledges to be important influences, nor does it identify any problems which the Claimant specifically attributable to this or other periods of segregation. There is no evidence of his being denied any treatment which health care had said he should have. There may have been a failure to provide a care plan on his leaving segregation, but that does not engage any ECHR rights of itself, nor show segregation to have become unlawful in retrospect.

Procedural safeguards

[67]Ms Williams contended that compliance with the Prison Rules, PSO 1700, and the avoidance of breaches of Articles 3 and 8 required procedural safeguards to be met. Prisoners should know why they were segregated, and should have the opportunity to challenge the reasons. The reasons given here for segregation and its continuance were inadequate to enable lawyers to challenge it, and lawyers could not represent the Claimant before the review Board. The reasons for segregation had not been disclosed in a time or manner such as to enable judicial review proceedings or other response to challenge segregation to be taken until it had finished.[68]I accept the submission of Ms Fatima for the Secretary of State for Justice that the Deputy Judge refused permission for this ground to be argued. Ground 3, for which permission was refused, is a distinct assertion that the Defendant refused to answer questions from the Claimant’s solicitors about his segregation, which effectively denied him access to justice, and to the safeguard of challenging the reasons for his segregation. Ground 1, for which permission was granted, and which was entitled “Unlawful Segregation” and summarised by the Deputy Judge as “Unlawful period of segregation”, includes argument about the right to be heard which in essence is the same as Ground 3. The Judge’s detailed analysis of the issue on which he did grant permission shows that he was concerned about the reason for the length of segregation. He makes no mention of disclosure of the reasons. I do not accept Ms Williams’ argument that he refused permission to argue Ground 3, but accepted that precisely the same point could be argued as part of Ground 1. There would have been no point in refusing permission to argue Ground 3.[69]In any event, there is nothing in the point. I accept that procedural safeguards are part of the protections for prisoners in segregation. No Rule or part of PSO 1700 was breached. The Claimant did know why he was being segregated: suspected involvement in the assault on the other prisoner. On 20 February, the preliminary conditional evidence was read out in his presence; he was advised to seek legal advice. He did know what he had done in segregation on 20 February 2010. He knew or must have known that that would be taken into account in considering the duration of segregation. He was given targets to meet, and knew that he would stay until they had been met satisfactorily. He could attend the review Boards, and communicate with the IMB member, as well as with his lawyers. Even if the lawyers did not know from him the reasons for segregation before 9 March 2010, the Defendant made them clear in his letter of that date. There is no need for lawyers to be present at review Boards in order for the necessary procedural safeguards to be in place.[70]Despite the contention in the grounds that judicial review proceedings could not be started to protect the Claimant’s rights in the absence of the disclosure they sought, proceedings in fact were started before the Claimant received the documentary disclosure which the Claim says was necessary to mount a challenge. They could have challenged the absence of reasons anyway, had there been no reasons given.

Conclusion

[71]This claim is dismissed. On examination it lacks any merit in my view. Its continuance required the re-examination of its merits in the light of the Detailed Grounds of Resistance, and the two Statements from Mr Marley, as enjoined by the Form granting permission. It does not appear to have had the necessary thought thereafter.

Cited in 1 later judgment