Syed, R (On the Application Of) v The Secretary of State for Justice [2017] EWHC 727 (Admin)

[2017] EWHC 727 (Admin)Case No CO/6460/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/04/2017
Before
THE HONOURABLE MR JUSTICE LEWIS
Between
R on the application of SyedClaimantThe Secretary of State for JusticeDefendant
Daniel Squires Q.C.(instructed by Birnberg Peirce and Partners) for ClaimantAndrew Sharland (instructed by Government Legal Department) for DefendantHearing Hearing dates: 21 st and 22 nd March 2017
Judgment ApprovedTHE HONOURABLE MR JUSTICE LEWIS:INTRODUCTION
[1]This is a claim by Nadir Syed for judicial review of a decision of 22 September 2016 to transfer the Claimant to the Central Managing Challenging Behaviour Strategy Unit (“the Unit”) at HMP Woodhill. The Claimant contends that his transfer to the Unit involves removing him from association with other prisoners within the meaning of rule 45 of the Prison Rules 1999 (“the Rules”) so that, consequently, the criteria and procedures prescribed by that rule need to be satisfied. The Defendant contends that the restrictions or limits on the ability of the Claimant to associate with other prisoners in the Unit do not amount to a removal from association within the meaning of the Rules.[2]The Claimant also contends, and the Defendant accepts, that the decision is unlawful for procedural reasons as explained below. The Claimant also contends that the decision is additionally unlawful as no adequate reasons have been provided for the decision. The Defendant contends that that ground of challenge is academic and, in any event, the reasons are adequate.[3]Finally, the Claimant contends that the restrictions on his ability to associate with other prisoners amounts to an interference with the right to respect for his private life within the meaning of Article 8(1) of the European Convention on Human Rights (“the ECHR”) which is not justified under Article 8(2) of the ECHR. The Defendant contends that the decision does not amount to such an interference but concedes that, if it does, it cannot be justified under Article 8(2) as it was not done in accordance with law due to the procedural flaws in the decision-making process. The Defendant also contends, however, that the placement at the Unit would otherwise be justified as a necessary and proportionate means of pursuing a legitimate aim. THE FACTS The Conviction

THE FACTS

[4]On 9 December 2015, the Claimant was convicted by a jury of an offence of doing an act preparatory to committing an act of terrorism contrary to section 5 of the Terrorism Act 2005. In brief, as is clear from the sentencing remarks of the trial judge, Saunders J., the act involved the purchase of a knife with the intention of killing and beheading an individual. In his sentencing remarks, the trial

judge said this:

“2. The preparatory act was the purchase of a large, very sharp, high quality kitchen knife. I am satisfied that the act of terrorism that the [Claimant] intended to commit was to attack a person in the street and decapitate him or her. That intention guided the choice of knife. It needed to be large and extremely sharp to cut off someone’s head. There was no particular victim identified but I am satisfied that the attack was going to take place at a time close to Armistice Day, such as a poppy seller… “3…. I am satisfied that, at the time he purchased the knife, [the Claimant] intended to use it to kill someone and that was going to happen shortly after the purchase. ….. “7. I am satisfied that the [Claimant’s] inability to go to Syria to fight was a factor in his decision to carry out an attack in this country. “8. Much of the evidence in this case came from messages sent between a group of extreme Muslims which were set out for the jury in a timeline. The contents of the timeline were sickening. There were many pictures of severed heads being held up by IS fighters; pictures of hostages about to be decapitated by members of IS; pictures of the dead body of Fusilier Rigby and his killers celebrating what he had done. The comments from the contributors including [the Claimant] glorified these events…. “11. I am satisfied that like the killers of Fusilier Rigby, [the Claimant] followed the precept of an eye for an eye and a tooth. That phrase appears regularly in the timeline and I am satisfied that [the Claimant] considered his beliefs not only entitled him but required him to go and kill someone on the streets of this country in revenge for events in Syria. He believed that IS were entitled to carry out the atrocities that they did to establish the caliphate and he supported their aims. “12. The sentence that I will pass has to reflect the criminality of a man who was setting out to kill an innocent member of the public in furtherance of his beliefs and political aims. The sentence also has to provide protection to the community. … “14… I have no doubt that he is dangerous. In my judgment if he was released from prison he would go and try and carry out what he failed to achieve. He would set out to kill in furtherance of his beliefs. He is an intelligent man. He had thought out what he wanted to do and I saw no sign in the evidence he gave of any change of view on his part.”
[5]The Claimant was sentenced to life imprisonment and ordered to serve a minimum term of 15 years in custody. It is relevant to mention the circumstances of the offence and the trial judge’s assessment of the Claimant’s risk and dangerousness as that is relevant to the assessment and management of the risk presented by the Claimant in prison and in considering whether there is a cogent justification for the circumstances of his detention in custody.

The Initial Period in Custody

[6]The Claimant had been remanded in custody in November 2014 at HMP Wandsworth. In December 2014, he was transferred to another prison and, on 18 May 2015, he was transferred to HMP Belmarsh. He has subsequently been transferred to other prisons and is currently in HMP Woodhill.[7]Information has been provided to the authorities from a number of sources since the Claimant was remanded in custody. The entirety of the information needs to be considered, bearing in mind that some of the sources of the information were not known and the quality of the information could not be assessed. In addition, the Claimant has given his account in detailed representations made by solicitors on his behalf on 15 September 2016 and in three witness statements to this court. I refer below to some of the information considered particularly relevant by the prison authorities, given the offence and the assessment of the trial judge, and the responses of the Claimant.[8]In July 2015 (before the Claimant was convicted), information was received indicating that the Claimant had stated that if he were sentenced he would carry out the act for which he was in prison. The Claimant contends that this information was received from an untested source and the information could not be verified. No action was taken on the allegation for five months. He submitted that that allegation had never been investigated and would not justify transfer.[9]Following conviction in December 2015, the prison authorities decided that the Claimant should be removed from association pursuant to rule 45 of the Rules. That removal from association, commonly referred to as segregation, was reviewed periodically in accordance with the Rules. The prison authorities received other information which caused them concern. Early in the morning on 7 July 2016, numerous prisoners were banging their cell doors with metal objects and calling out “Allahu Akbar” and making comments about beheading. One officer entered the Claimant’s cell and heard the Claimant say that if the staff violated one “brother” they violated all. Throughout the morning, the Claimant and two other prisoners were heard to shout at staff that they (the staff) were oppressing Muslims, hitting their cell doors while shouting “Allahu Akbar” and making more threats of beheading. An officer reported that at 12.15 pm. on 7 January 2016 he had been attending a prisoner in a neighbouring cell when the Claimant came to the observation hatch in his cell and shouted that he would behead “us all” (which I take to be a reference to officers) and that the officer in question would be first. A record of a review of the segregation made by prison staff made the following comment on the incident:
“Rule 45 Review: Mr Syed was part of a group of prisoners who were chanting Islamic phrases last night and this morning, and who made explicit threats to behead officers on the segregation unit. He has been raised to an SO&6 PPE unlock as a result. In consequence I did not allow him to attend his GOOD review but spoke to him afterwards through his door. He denied getting involved and said that the prisoners had been provoked by segregation staff. He suggested that he had been goaded by an officer and all he said in response was “come to my cell”
. I asked him to complain in writing so that his allegations can be fully investigated, and explained that I would certainly feel threatened if he invited me into his cell in an aggressive tone. He tried to claim that he had “never been in any trouble” in the seg, and I challenged him on this as he has clearly shown a different side in the last 24 hours.”[10]The Claimant, through solicitors, made representations about this allegation in September 2016. He said that the officer had been taunting another officer and that he, the Claimant, had shouted that that behaviour was out of order. He said that the officer came to the hatch of his cell and verbally abused him, making aggressive and derogatory comments to the Claimant and made provocative comments about cutting the Claimant’s head off. He said that it was the officer who behaved provocatively and unprofessionally towards him not the other way around. He said that his account would be corroborated by CCTV (but prison staff did not obtain the CCTV footage). In his third witness statement, filed shortly before the hearing, the Claimant said it was correct that he had told the officer to come into his cell. He said that the officer threatened him after he told the of ficer to leave his friend alone. The Claimant said that he had said words to the officer to the effect of “If you are going to do what you are going to do, like you’ve done to others, then come into my cell and do it to me”, and he said that those words were not said as a threat.[11]Furthermore, there was information that the Claimant had contact with persons with whom he had discussed a proscribed organisation, namely Al-Muhajiroun on 28 May 2015 and on two occasions on 3 January 2016. The Claimant said in his representations to the prison authorities that the information does not show any concerns in relation to the content of the communications made by the Claimant and the conversations would have been wide-ranging and unobjectionable. He said that he had stopped contact with the four friends after he was told about the concerns at a meeting with a prison governor on 22 June 2016 save for one pre-booked visit from one of the individuals and a couple of telephone calls during a Muslim religious period about a week after 22 June 2016.[12]In September 2016, consideration was given to transferring the Claimant from segregation to a Closed Supervision Centre (“CSS”). The relevant committee considered the information refered to, and the representations made by the Claimant and his lawyers (in particular, representations made on 29 February 2016 and 15 September 2016). The committee decided not to transfer the Claimant from segregation to the CSC but to transfer him to the Unit. The decision was set out in letter dated 22 September 2016 which said that:
“The decision was not to select Mr Syed into CSC for assessment. It was however decided by CSCMC that Mr Syed’s level of risk to others does need to be further assessed and considered, and that a main wing location at this time would therefore not be appropriate. The decision was therefore that he will be managed and supported under the Central MCB (Managing Challenging Behaviour) Strategy, and transferred to a Central MCB Unit once a space becomes available. This will enable him the opportunity to access the ERG assessment, and other assessment and intervention work deemed appropriate with a multi-disciplinary team. He will also be able to access a greater regime, and association with a small group of others subject to risk assessment, and if/when risk assessed as appropriate an opportunity for reintegration back onto a normal location.”
[13]Further reasons were given in a letter dated 29 September 2016 which indicated that information on the Claimant was considered to be relevant and that the Claimant posed a risk towards others in custody. The decision-making process is explained by Mr Waldron who was a member of the committee that considered the matter on 22 September 2016. He said this in his second witness statement:
“18. Mr Syed misunderstands the decision-making process. The decision to transfer Mr Syed to the MCBS unit was not based on a determination of facts as to whether a particular event occurred but involved a judgment as to the risk posed by Mr Syed and whether it could be best managed in the MCBS Unit, which is a less intrusive regime than segregation that Mr Syed was subject to at the time of the decision, or some other regime. “19. We considered the totality of the evidence including the numerous intelligence reports, the nature of the index offence and Mr Syed’s representations. The July 2015 intelligence that suggested Mr Syed was planning to behead a member of staff was part of the information considered [H67]. I understand that Mr Syed asserts that because this intelligence was rated E4 it was regarded by the prison was unreliable and untrue and therefore no weight should have been placed upon it. This evinces a misunderstanding of the 5 x5 Security Codes. The E designation means that the information is from an untested source, ie a source that has not previously provided information to the person recording it. A grading of E, unlike D (which indicates that the source has provided consistently unreliable information) does not mean that the source is unreliable. The 4 signifies that the reliability of the information cannot be judged. I accept that the information graded in such a way should be treated with caution and it was so treated. However, given the seriousness of risk detailed in this intelligence (ie a risk to life of a prison officer or officers) together with the similarity to the index offence (and previous offending) it was something that was taken seriously. I remain of the view that this was appropriate. However, this intelligence was not the only intelligence on Mr Syed that was considered. In addition, there were numerous intelligence reports that related to his communications with external associates some of whom are believed to be linked to the proscribed organisation Al-Muhajiroun (ALM). “20. The CSC Management Committee also took into account the intelligence related to the January 2016 incident where, amongst other matters, the intelligence suggests that Mr Syed threatened to behead Officer Mehmet. We were aware that Mr Syed denied this allegation and suggested that it was Officer Mehmet who had acted in a threatening way. Mr Syed’s case was that he heard Officer Mehmet abusing another prisoner and that “he walked to [his] cell door and politely told that officer that he was being out of order” (see Birnberg’s representations to the CMC Committee dated 15 September 2016 quoting from a confidential access complaint that was not submitted [C34].) Whilst I understand (and understood in September 2016) that this was Mr Syed’s case, the Committee did not find his explanation convincing. In particular, it is undermined by other statements made by Mr Syed. For example, when Mr Syed spoke to Governor Pugh he denied threatening Officer Mehmet and stated that all that he had said in response to the officer’s alleged goading was “come into my cell” (see [C82]). The Committee, like Governor Pugh to whom the statement was made, regarded this statement as threatening rather than merely a polite comment that the officer was “out of order”
. Further, on 26 January 2016, the intelligence reports that Mr Syed told a friend in a telephone conversation that he had called the officer a “dirty kufir” [H81]. Again, this is somewhat inconsistent with Mr Syed’s account, of a polite non-threatening conversation, which we did not regard as credible. “21 As detailed above, the Secretary of State for Justice accepts that the decision to transfer Mr Syed to the MCBS Unit needs to be reconsidered taking into account all relevant information including any intelligence since the September 2016 decision and any further representations that Mr Syed may wish to make on the issue.”[14]For completeness, I note that the latest risk assessment is dated 2 February 2017 which says this:
“Mr SYED has an absence of physically aggressive behaviour whilst in Prison, he has however, a lot of intelligence stating that he has intentions to take staff hostage and behead them, and this was reported around his conviction time. He is also documented inciting others to disruptive behaviour and at HMP Belmarsh took part in this in the Segregation unit, at the time he was also calling out this is Jihad, and he threatened to radicalise the whole unit. Mr Syed presents a risk to others especially staff and should be treated as such at all times, staff are not to be alone with him to prevent the risk of hostage taking.”
The Claimant disputes the accuracy of that assessment.

The Transfer to the Unit

[15]Until 2 November 2016, the Claimant was held in a cell and had no association with other prisoners. He was in what is commonly referred to as segregation. On 2 November 2016, he was transferred to the Unit.[16]The Unit is described in the first witness statement of Mr Waldron. He explains that it was set up to provide for the management of prisoners whose behaviour was dangerous, disruptive and particularly challenging to manage but whose conduct did not require management within a different regime, the CSC, and was intended to address risks and behavioural problems before they escalated to a level at which a referral to the CSC became necessary. He refers to a report prepared by HM Inspectorate of Prisons in March 2015 in respect of CSC and managing challenging behaviour strategy units such as the Unit. That report had described both regimes as involving what was described as extreme custody whilst noting that the units involved similar but slightly less restrictive conditions than the CSC. Mr Waldron describes some of the changes that had occurred since the report, including the creation of a post of progression support officer in December 2016 whose function was to improve the regime and activities on the Unit and increase the speed of access to, and the range of, activities carried out at other locations in the prison.[17]Mr Waldron explains that the regime on the Unit is aimed at normalising the days within the confines of a high security custodial setting. He explains that prisoners are unlocked from their cells in accordance with a published schedule. There is association time where prisoners are free to mix with other prisoners in the Unit and play board and card games or pool. There are two exercise facilities, one is a gym and the other is described as cardio-vascular exercise room. There is room for one prisoner at a time in one facility and two prisoners in the other facility. There is an exercise yard. The number of prisoners, and the number of groups, in the Unit varies. That has an impact on the amount of time that the prisoners can spend interacting with other prisoners. If there are two groups, half the total time allocated for association is given to each group. If there are three groups, 1/3 of the time for association is given to each group.[18]The evidence including, in particular, the times when the Claimant has been able to interact with other prisoners is, unfortunately, not completely clear. Neither the Claimant, nor the Defendant, has adduced clear evidence on the position in relation to the entire period spent in the Unit and there is some disagreement on what the evidence does establish. Fortunately, the broad picture is clear and the evidence is sufficient to enable the issues that arise in this case to be determined.

Association with other Prisoners

[19]Between arrival on 2 November 2016 and 6 (or 7) November 2016, the Claimant did not have any association or contact with other prisoners but was held alone in his cell. The Defendant accepts that, during this period, he was removed from association, or in segregation (albeit within the Unit) and as such authorisation for removal was required pursuant to rule 45(2) of the Rules. The Defendant contends that such authorisation did exist and authorised removal from association up to 15 November 2016: see the witness statement of Carolyn Lund dated 24 March 2017. The Claimant contends that the authorisation expired on 2 November 2016: see paragraph 4 of the note dated 28 March 2017 and fourth witness statement of the Claimant. As no challenge is made in these proceedings to the decision to segregate the Claimant (the challenge is to the decision to transfer him to the Unit), it is not necessary in these proceedings to resolve that specific dispute.[20]From 7 (or 8) to about 24 November 2016, there were two groups of prisoners in the Unit. The Claimant was able to associate with other prisoners, outside of his cell, for 2 hours and 15 minutes on four days a week, two hours and 5 minutes on a fifth day a week, and for periods of 95 minutes on the remaining two days a week. See Claimant’s 1st witness statement dated 20 December 2016 at paragraph 34 and the timetable attached to Mr Waldron’s first statement dated 24 February 2017.[21]From about 24th November to 20 December 2016, the evidence is that there were three groups of prisoners in the Unit, and the Claimant was able to associate with prisoners in one of those groups for under 2 hours a day on 5 days a week and 1 and ½ hours on each of the remaining two days in the week (see Claimant’s 1st witness statement dated 20 December 2016 at paragraphs 35 and 36).[22]From about at least 21st December to about 24 February 2017, the evidence is unclear. Certainly, as at 6 March 2017, the Claimant’s evidence is that there were seven prisoners held in two groups (see the Claimant’s 2nd witness statement dated 6 March 2017). The Claimant does not indicate at what date the number of groups went down from three to two groups. The evidence of Mr Waldron is that as at 24 February 2017 there were two groups in the Unit. His evidence is that there were usually two groups and dividing prisoners into three groups was always a temporary measure (see paragraph 6 of Mr Waldron’s second witness statement) although the Claimant disputes this. The likelihood is that at least from 24 February 2017, and quite probably earlier, there were two groups and the time the Claimant had for association is as set in paragraph 19 above. At some stage between 20 December 2016 and 24 February 2017, therefore, the number of groups reduced from three groups (when the Claimant had less than two hours a day to associate with other prisoners) to two groups (when the Claimant would have had the time set out in paragraph 19 above for association with other prisoners).[23]From 11 March 2017 to either 14 March 2017 (on the Defendant’s case) or to the 17 March 2017 (the Claimant’s case), there were again three groups with the result that the time that the Claimant had for association with other prisoners would be less than 2 hours: see paragraphs 3 to 5 of Mr Waldron’s second statement. Thereafter to the date of the hearing on 21 March 2017 there appears to have been two groups and the time for association was as in paragraph 20 above.

Other Time Spent Outside the Cell and Engaging in Other Activities

[24]From the 7 (or 8) November 2016 to the present, the Claimant has had one hour of exercise each day (which he could undertake alone or with 1 other prisoner). On 5 days a week, he was able to leave his cell and carry out domestic chores for 30 minutes a day but was alone for this period and locked in the place where the chores were performed.[25]From the 2 February 2017, the Claimant has been able to go to the library (which is located elsewhere in the prison, not in the Unit). He is able to visit the library with one other prisoner and is escorted by prison officers. Other prisoners do not use the library at the time that he does. There may be prisoners working in the library but the Claimant has never seen them. The total time taken up by this activity is 45 minutes a week.[26]On 17 March 2017, he was permitted to attend Friday prayers for the first time. The religious service itself took 45 minutes and the entire time outside the cell lasted 70 minutes. The Claimant has also been given approval to undertake Islamic Studies classes but had not yet started to attend classes at the time of the hearing.

Other Prisoners in Other Parts of the Prison

[27]There is limited evidence available as to the position available to prisoners on the wings within HMP Woodhill, that is on wings other than the Unit or CSCs. Mr Guedalla, the solicitor for the Claimant, has made a witness statement in which he says that prisoners on the main wings are out of their cells associating and interacting with other prisoners (e.g. in the exercise yard, at work, education in the gym etc.) for approximately 8 hours 30 minutes a day during weekdays and for 5 hours 45 minutes a day at weekends. That information is gleaned from information provided in relation to one wing (described as Unit 1A) which holds 93 prisoners. A prisoner in that wing has the opportunity to associate with all other prisoners in the wing.

THE LEGAL FRAMEWORK

[28]Section 12 of the Prison Act 1952 ( “the Act”) provides that a prisoner may be confined in any prison. Section 47 of the Act provides power for the Secretary of State to make rules for the regulation and management of prisons and other institutions and for the classification, treatment, employment, discipline and control of persons required to be detained in a prison.[29]The Rules refer to association with other prisoners in rules 8 and 31. Those Rules provide, so far as material, as follows:
“8. Privileges (1) There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which shall include arrangements under which money earned by prisoners in prison may be spent by them within the prison. “(2) Systems of privileges approved under paragraph (1) may include arrangements under which prisoners may be allowed time outside their cells and in association with one another, in excess of the minimum time which, subject to the other provisions of these Rules apart from this rule, is otherwise allowed to prisoners at the prison for this purpose.” and “31. Work “(1) A convicted prisoner shall be required to do useful work for not more than 10 hours a day, and arrangements shall be made to allow prisoners to work, where possible, outside the cells and in association with one another.” (1) There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which shall include arrangements under which money earned by prisoners in prison may be spent by them within the prison. “(2) Systems of privileges approved under paragraph (1) may include arrangements under which prisoners may be allowed time outside their cells and in association with one another, in excess of the minimum time which, subject to the other provisions of these Rules apart from this rule, is otherwise allowed to prisoners at the prison for this purpose.” “31. Work “(1) A convicted prisoner shall be required to do useful work for not more than 10 hours a day, and arrangements shall be made to allow prisoners to work, where possible, outside the cells and in association with one another.”
[30]There are other provisions dealing with activities which may involve a prisoner carrying out an activity alone, or may involve some interaction with other prisoners. These include the opportunity to attend religious services (rule 16) the provision of 1 hour of physical education a week (rule 29), the opportunity to spend time in the open air for such period as is reasonable and weather permitting (rule 30), the opportunity to profit from educational facilities (Rule 32), and access to a library in order to have and exchange books (Rule 33).[31]There are two specific rules dealing with removal from association, namely rules 45 and 46 of the Rules which provide as follows:
“45.— Removal from association (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 nursES working within the prison. (4) This rule shall not apply to a prisoner the subject of a direction given under rule 46(1). “46.— Close supervision centres (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, 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] 1 . (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 for the time being used for holding a prisoner who is subject to a direction given under paragraph (1).”
THE PROCEEDINGS AND THE ISSUES The Proceedings

THE PROCEEDINGS AND THE ISSUES

[32]The Claimant issued proceedings on 21 December 2016. The only decision he challenges in these proceedings is the decision of 22 September 2016 to transfer him from segregation to the Unit. He has never brought proceedings to challenge the period that he has spent in segregation. The Claimant, however, contends that, in so far as the matters that resulted in his being segregated are being relied upon as justification for his placement at the Unit (rather than on a wing of the prison), he can, and does, challenge whether they provide a cogent justification for his continued placement on the Unit.[33]There are five grounds of challenge. The first is that the regime within the Unit amounts to a removal from association within the meaning of rule 45 of the Rules.[34]The second ground of challenge was that the decision of 22 September was unlawful as it was taken in breach of the relevant policy on transfers as the relevant body did not take the decision, the criteria were not met and the process for transfer was not followed. The third ground was that the Claimant was given no opportunity to make representations on the transfer of the Unit. On the 24 February 2016, the Defendant conceded that the decision was unlawful because of grounds 2 and 3. Mr Sharland, for the Defendant, explained that the Claimant had previously been given the opportunity to make representations on a transfer to the CSC but had not been told of the possibility of a transfer to the Unit instead and, further, that the relevant up to date policy on transfers to the Unit had not been published and so the Claimant had not had the opportunity of commenting upon its application to his case. That is consistent with the evidence of Mr Waldron who, in his first statement, said that the relevant authorities remain of the view that the decision to place the Claimant in the Unit was the correct decision on the information available at the time but recognise that there were procedural flaws in the decision-making process. For that reason, the matter needed to be considered again after the Claimant had been given an opportunity to make representations and having regard to all up to date material. As it is accepted that the decision of 22 September 2016 is flawed for procedural reasons, that decision will be quashed.[35]The fourth ground is a claim that the reasons given for the decision of 22 September 2016 were inadequate. The Defendant contends that this issue is academic and, in any event, the reasons given for the decision are adequate. In my judgment, this ground of challenge is academic. The decision of 22 September 2016 will be quashed in the light of the concession that it is unlawful having regard to grounds 2 and 3. The question of whether it would also be unlawful because inadequate reasons were given is academic. The courts have a discretion to hear claims involving questions of public law even where there are is no longer a live issue which will directly affect rights between parties. The courts will exercise that discretion with caution and such disputes will not be heard unless there is a good reason to do so. The courts will not normally exercise their discretion to consider issues which have become academic between the parties and which turn on the particular facts of the case: see, generally, R v Secretary of State for the Home Department Ex p. Salem [1999] 1 A.C. 450, and R (Brooks) v Islington London Borough [2015] EWHC 2657 (Admin.) [2016] PTSR 389 at paras. 22 to 27, especially at para. 27. The challenge to the decision on grounds of the inadequacy of reasons is academic and turns on the particular facts of the case. There is no good reason to consider this ground of challenge.[36]The fifth ground concerns a claim by the Claimant that his placement in the Unit involves an interference with his right to respect for his private life within the meaning of Article 8(1) of the ECHR which is not justified as there is no cogent justification for the placement of the Claimant in the Unit. The Defendant contends that there is no interference within Article 8(1) but, if there is, it cannot be justified under Article 8(2) as the procedural flaws meant that the decision was not taken in accordance with law as required by Article 8(2) ECHR. The Defendant contends that the continued placement in the Unit is justified.[37]The issues under ground 1 and ground 5 are both live issues which need to be resolved by this court as they will dictate whether the placement within the Unit was lawful.

The Issues

[38]Against that background, the issues that need to be considered, therefore are:(1) whether the conditions under which the Claimant is detained in the Unit amount to his removal from association with other prisoners within the meaning of rule 45 of the Rules?(2) whether the conditions in which the Claimant is detained amount to an interference with the right to respect for his private life within Article 8(1) ECHR and;(3) if so is the interference justified and, in particular, is it necessary and proportionate, as there is a cogent justification for keeping the Claimant in the Unit?

THE FIRST ISSUE – REMOVAL FROM ASSOCIATION

[39]The Claimant contends that being placed within the Unit involves removal from association as it involves removal from the degree of association normally available to prisoners within HMP Woodhill. The Claimant, located in the Unit would have periods of, in some weeks, 2 and ¼ hours a day (or less on other days) and in some weeks less than 2 hours a day, association with a small number other prisoners, and the possibility to interact for limited periods with one or more prisoners (for example, en route to the library or in one of the physical exercise facilities or at Friday prayers). A prisoner on a main wing would have far more hours of association or interaction with far more prisoners (e.g. up to 8 and ½ hours on weekdays and up to 93 prisoners). That, submits Mr Squires on behalf of the Claimant, constitutes a removal from association within the meaning of rule 45(1) of the Rules, which may only be imposed if the criteria in that rule, and the procedural requirements relating to authorisations in that rule, are met. Mr Sharland contends that placement in the Unit where the Claimant can associate with other prisoners for a number of hours a day does not constitute removal from association within rule 45(1) of the Rules. He contrasts that with the previous position where the Claimant was locked alone in his cell for 23 hours and had no association with other prisoners.

The Wording of the Rules

[40]This issue is, as the parties agreed, a matter of the proper construction of rule 45 of the Rules. The starting point is the language used in the rule itself. The two key concepts in rule 45 are association with other prisoners and removal. The power conferred under rule 45 arises where it appears desirable for the maintenance of good order or discipline or in the prisoner’s own interests that “the prisoner should not associate with other prisoners”. The power is of “removal” from association. “Association” must mean association with other prisoners.[41]In my judgment, the phrase “associate with other prisoners” refers to a situation where a prisoner may have contact and interact with other prisoners, outside his cell, either generally or in particular contexts. That is reinforced by the use of the word “association” in other parts of the Rules. Rule 8, for example, contemplates arrangements under which prisoners may be allowed time out of their cells and in association with one another. “Association” there contemplates time when the prisoner is not locked alone in his cell but is outside and able to interact with other prisoners. Similarly, Rule 31 contemplates that, where possible, arrangements should enable prisoners to work outside their cells and in association with one another. In context, therefore, “removal from association” means to take away the opportunity for the prisoner to be able to interact with other prisoners outside his cell. The words used are “removal from” not “reduction” of or “limitation” on association with other prisoners.

The Structure of the Rules

[42]That interpretation is, in my judgment, reinforced by a consideration of the structure of the Rules as a whole and, in particular, rule 46 of the Rules. The power conferred by rule 46 arises again where, for specified reasons, it is desirable that a “prisoner should not associate with other prisoners”. In those circumstances, the Secretary of State may direct the “prisoner’s removal from association” and “his placement in a close supervision centre of a prison”. Rule 46(5) defines such a centre as any cell or other part of the prison holding prisoners subject to a direction given under paragraph 46(1).[43]The words “associate with other prisoners” and “removal from association” in rule 46 must, in my judgment, have the same meaning as they have in rule 45. There is no basis for considering that the same words, dealing with the same subject matter, have a different meaning in rule 46.[44]It is clear that rule 46(3) expressly contemplates that a prisoner may “resume association with other prisoners, either within a close supervision centre or elsewhere”. It is clear that rule 46(3) contemplates that association with other prisoners may be provided within the CSC. Such a prisoner will no longer be subject to removal from association as he is permitted to associate with other prisoners in the CSC. Continued placement in a unit such the CSC would not in those circumstances involve removal from association. Thus placement away from a main prison wing, with different, and far fewer, prisoners to associate with, would not necessarily involve removal from association. Furthermore, there is nothing to indicate that the number of hours of association available within the CSC must replicate the number of hours available in a main or “normal” wing (that is, a wing holding convicted prisoners not subject to any particular regime). That reinforces the conclusion that the references to “association” and “associate with other prisoners” are references to a state of affairs, that is the ability of a prisoner to interact, outside of a cell, with other prisoners.[45]Mr Squires for the Claimant submitted first that rule 46(3) and (5) of the Rules, read literally, cannot make sense. He submitted that it was not possible to be in a CSC once a prisoner is allowed to resume association. He submits that a CSC is defined as a cell or part of a prison where a prisoner is held subject to a rule 46(1) direction. Such a direction requires that a prisoner be removed from association and placed in a CSC (see rule 46(1) of the Rules). Thus, he submitted, once a prisoner is allowed to resume association under rule 46(3), he cannot, by definition be subject to a rule 46(1) direction as he is no longer removed from association and one of the two necessary elements in place for there to be a rule 46(1) direction is missing. In my judgment, that involves a misreading of rule 46. A direction is given under rule 46(1) where a prisoner should be removed from association for one of the specified reasons. The direction will do two things: it will remove the prisoner from association with other prisoners and will provide for his confinement in a particular cell or part of the prison (called a CSC). When a further direction is given under rule 46(3) that a prisoner “shall resume association”, that qualifies or removes the effect of one part of the rule 46(1) direction but it does not remove the direction itself which remains in place.[46]Mr Squires alternative submission was that rule 46(3) was to be interpreted as permitting association albeit with a more limited group of prisoners within the CSC and that that did not cast light on the meaning of removal from association in the context of rule 45. That submission, in my judgment, is inconsistent with the wording of rule 46(3) of the Rules. That provides for the Secretary of State to direct that the prisoner “shall resume association”. The rule contemplates association as being a state of affairs, that is a situation where a prisoner can, outside of his cell, associate or interact with other prisoners. That state of affairs may be “resumed” within a CSC, notwithstanding that the number of prisoners and the identity of the prisoners may differ from the prisoners with whom the prisoner associated previously (or with whom he would associate on a main wing) and, indeed, the association will occur in a different location (the CSC). The more natural interpretation of rule 46, therefore, is that the rules envisage association with other prisoners as reflecting a state of affairs where a prisoner may, outside of his cell, have contact and interact with other prisoners. Removal from association means bringing that state of affairs to an end. It does not mean removing a prisoner from a particular wing or changing the number of hours or the number or identity of prisoners, or the location, in which association may take place.

The Purpose of the Rules

[47]Mr Squires submits that consideration of the purpose of Rules 45 and 46 indicates that it is not permissible to have a situation where a prisoner is in a unit or part of a prison but with lesser levels of association without the safeguards provided for by rules 45 and 46. Further, he submits that such a situation could lead to abuse whereby use is made of placement in units such as the Unit where there is a limited level of association in order to avoid the need to satisfy the criteria or to circumvent the procedural safeguards contained in rules 45 or 46.[48]First, in my judgment, the wording of Rule 45 and 46 is clear. Secondly, the Rules do not, in fact, contemplate a situation where there is either, on the one hand, placement in a main or “normal” wing of the prison and, on the other hand, segregation or placement in a CSC. There is nothing to indicate that the Rules preclude a situation where prisoners are located in a particular unit or part of the prison, appropriate to the risk that they present and the difficulties in managing them, and allowing them the amount of association with other prison that is possible in the circumstances. Indeed, that is consistent with the wording of rule 46(3) of the Rules. That contemplates that a prisoner may need to be removed from association and placed in a CSC. It contemplates that the prisoner may resume association with other prisoners although that may be in a CSC “or elsewhere”. There is no reason why that could not occur in part of the prison with a less restrictive regime than a CSC such as the Unit in the present case. Equally, there is no reason why a prisoner cannot be moved from segregation where he has no association with other prisoners to a part of the prison, such as the Unit, where he is able to resume association with other prisoners in a setting suitable to the management of the risks he presents as has happened in the present case. The authorities took the decision to transfer him to the Unit, and did so on 2 November 2016, as they believed that the risk he presented could be managed in the Unit, and he could associate with other prisoners, and that further steps could be taken to increase his integration in other activities within the prison with a view, potentially, to him being able to move to a main wing.[49]Furthermore, if there were to be a situation whereby the prison authorities sought improperly to transfer a prisoner from a main wing to the Unit in order to avoid the safeguards prescribed by rule 45, rather than because the Unit was the appropriate location for that prisoner and the prisoner satisfied the criteria for transfer, that could be controlled by way of judicial review. For completeness, it is not suggested in the present case that that was the reason for the transfer. There is no claim, and no evidence whatsoever, to suggest that the authorities here were seeking to avoid the safeguards prescribed by rule 45 of the Rules.

The Case Law

[50]An interpretation of rule 45 of the Rules which recognises that association with other prisoners is a state of affairs whereby a prisoner may, outside of his cell, have contact with other prisoners, and where the circumstances and the time allowed for association may change without that resulting in a prisoner being removed from association, is consistent with the case law. In R (Bourgass) v Secretary of State for Justice [2016] A.C. 384,the Supreme Court was concerned with the procedure followed under the provisions of rule 45 as then in force and with whether any ability to associate with other prisoners constituted a civil right within the meaning of Article 6 of the ECHR. Lord Reed, with whom the other Justices agreed, said, in the latter context, at paragraph 122 of the judgment, that:
“122. As was explained in Hague, a prisoner has no private law right to enjoy the company of other prisoners. Some degree of association is, of course, a normal feature of imprisonment; and rule 45 is based on that premise. Nevertheless, a prisoner does not possess any precisely defined entitlement to association as a matter of public law. The amount of time which he is permitted to spend outside his cell, and the degree of association which he is in consequence permitted to have with other prisoners, will depend on an assessment by the prison authorities of a variety of factors, such as the number and characteristics of the prisoners held in the prison, the number of staff on duty, security concerns, disturbances in the prison, and other contingencies such as industrial action by prison officers. The extent of association may therefore vary from one prison to another and from one day to the next. It is thus dependent on the exercise of judgment by those responsible for the administration of the prison. That conclusion is not inconsistent with that exercise of judgment being subject to review on public law grounds. There is however no analogy with the circumstances in which article 6.1 has been applied to disputes arising in public law.”

Application to the Facts of this Case

[51]In the light of that interpretation of rule 45 of the Rules, the placement of the Claimant in the Unit where there is the possibility of association with other prisoners for a number of hours a day would not involve removal from association within the meaning of rule 45 of the Rules. The Claimant would be able to associate with other prisoners, outside of his cell, within that Unit albeit for different times and with a different and smaller, number of prisoners than those with whom he would have been able to associate with had he been transferred from segregation to a main wing of the prison. He is not removed from association with other prisoners within the meaning of rule 45 of the Rules. Rather, he is enable to enjoy association with other prisoners.

Ancillary Matters

[52]For completeness, I note that Mr Squires relied upon other material as an aid to the construction of rule 45 of the Rules. The first was an explanatory memorandum prepared by the Ministry of Justice providing information to the Joint Committee on Statutory Instruments relating to amendments to the Prison Rules contained in the Prison and Young Offender Institution (Amendment) Rules 2015. Assuming, without deciding, that such a document is admissible as an aid to statutory construction, the document does not assist in the interpretation of the relevant parts of rule 45 of the Rules. It deals with amendments made to parts of rule 45, amongst other rules, in the light of the decision of the Supreme Court in Bourgass. Those amendments did not relate to the principal words at issue in this case, namely, associate with other prisoners and removal from association. Mr Squires relied upon the memorandum principally as the description of the “policy background” refers to the aim of segregation being to provide a process by which prisoners can be removed from normal association. He submitted that that indicated that the words “association” in rule 45 should be interpreted as meaning “normal association” or the level of association normally available in an ordinary wing of the prison. I do not find that the general reference in the explanatory memorandum to the aims of segregation assists in the interpretation of rule 45 or in dealing with the facts of this particular case. Mr Squires also relies upon the report of the secondary legislation scrutiny committee. Again, that report does not deal with the interpretation of the relevant words in rule 45 of the Rules. It refers, in a section entitled background, to segregation and again refers to it as the removal of a prisoner from normal association. That generalised reference does not assist in the construction of the relevant parts of the Rule.[53]In his written submissions, Mr Squires also relied upon a statement made by the Parliamentary Under-Secretary of State for Justice to the delegated legislation committee in relation to the 2015 Rules when he indicated that the purpose of segregation under rule 45 was to remove prisoners temporarily from general association. Later in his comments, the minister referred to the prisoner being returned to the normal location as soon as it was safe. The statements were not made in relation to the specific statutory provisions in issue, by a minister who had made the relevant Rules. They do not meet the criteria for admissibility set out in Pepper v Hart [1993] A.C. 593 esp. per Lord Browne-Wilkinson at. 640 B-D, and Melluish v BMI (No. 3) Ltd. [1996] A.C. 454 at pages 481E to 482B. The generalised comments on the nature of segregation do not, in any event, assist with the particular issue of interpretation that arises in this case.[54]Mr Squires also relied upon a witness statement made by an official in another case which has not formally been adduced as evidence in this case. That statement refers to segregation as involving removing a prisoner from free association with the general population. A generalised statement by a witness in a different case is not admissible as evidence on the meaning of a statutory instrument and did not assist in any event in this case. THE SECOND AND THIRD ISSUES – THE APPLICATION OF ARTICLE 8 ECHR

THE SECOND AND THIRD ISSUES – THE APPLICATION OF ARTICLE 8

[55]The second and third issues involve consideration of whether the restrictions imposed on the Claimant from 2 November 2016 when he was transferred to the Unit amount to an interference with the right to respect for his private life within the meaning of Article 8(1) ECHR and, if so, whether such interference was justified in accordance with Article 8(2) ECHR.[56]Article 8 ECHR provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. “2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Interference within the Meaning of Article 8(1) ECHR

[57]The restrictions and limitations ordinarily consequent on prison life and discipline during lawful detention may not amount to an interference with the detainee’s private or family life: see Nowicka v Poland [2003] 1 FLR 417 at paragraph 72, and see R (Munjaz) v Mersey Care NHS [2006] 2 A.C. 148 at para 88 per Lord Hope.[58]Restrictions which go beyond that may amount to an interference with the right to respect for private life and may, therefore, require to be justified in accordance with Article 8(2). By way of example, lengthy periods of segregation, that is removal from association with other prisoners, have been held to involve an interference within the meaning of Article 8(1) ECHR. Thus, in Shahid v Scottish Ministers [2016] AC 429, the defendants conceded that a period of 56 months’ segregation to protect the prisoner from attacks by other prisoners amounted to an interference which needed to be justified. Lord Reed, with whom the other members of the court agreed, accepted that that concession was rightly made and went on to consider whether the segregation was justified under Article 8(2) ECHR. In R (Dennehy) v Secretary of State for Justice [2016] EWHC 1219 (Admin.), Singh J. held that a period of two years’ segregation, or removal from association, amounted to an interference requiring justification: see paragraph 151 of the judgment. In the present case, the Claimant was removed from association, that is he was segregated for a period of approximately 11 months (from 9 December 2015 to early November 2016) but no challenge to the lawfulness of that segregation was ever brought.[59]The real issue in the present case is whether the restrictions imposed when the Claimant transferred to the Unit on 2 November 2016 amounted to an interference with the right to respect for his private life. That involves consideration of the factual circumstances of his particular case. Consideration needs to be given to the context in which the transfer took place, the nature of the restrictions imposed, their duration and their effects on the Claimant.[60]The context in which the transfer arose is that the Claimant was assessed as posing a risk to the safety and lives of others. He had been removed from association with other prisoners, and segregated, for about 11 months. The authorities judged that removal from association, or segregation, could end. The Claimant was still assessed as posing risks and needed to be dealt with in the context of the strategy on managing challenging behaviour. That strategy provides a framework for the management of prisoners whose behaviour is dangerous, disruptive or particularly challenging to manage. In that context, the Claimant was transferred from segregation to the Unit rather than being returned to a main wing. The Claimant continued to be segregated, that is removed from association and kept alone in his cell, for the period from 2nd to 6th (or possibly 7th) November 2016. Thereafter, the arrangements in place for his management was broadly, as follows.[61]From the period from 7th November 2016, the Claimant was allowed out of his cell for one hour each day for exercise, either alone or with one other prisoner. He was also allowed out of his cell for 30 minutes a day for 5 days a week to perform chores during which time he was alone and locked in the area where he performed the chores. He was also allowed to associate with other prisoners in the Unit. The precise amount of time varied, depending in particular, whether there was one or more groups of prisoners. The precise time allowed out of the cell for association would vary from 2 and ¼ hours on some days to about 1 and ½ hours on other days (see above at paragraphs 19 to 22). In addition, some periods of association have been reduced due to shortages of staff to supervise prisoners.[62]In addition, the Claimant was not able to have access to any activities off the Unit from 2 November 2016 to 2 February 2017. On that day, he was granted permission to go to the library once a week to exchange books (he goes there with one other prisoner and officers). This involves time outside his cell of approximately 35 to 40 minutes once a week. On 17 March 2017, the Claimant was given permission to attend Friday prayer services. The service lasts approximately 45 minutes and the total time spent outside the cell amounts to approximately 70 minutes. The Claimant has been approved to attend education classes but has not yet commenced attendance.[63]In summary, therefore, the context is that restrictions are considered necessary to control the risk presented by the Claimant. That has required him to be placed in the Unit with a small number of other prisoners. He has daily exercise and time outside his cell for domestic chores (Monday to Friday). He has limited opportunities for association with prisoners. He had no opportunity to participate in activities outside the Unit until 2 February 2017 (since which time he has had once-weekly access to the library). On 17 March 2017, he was able to attend Friday prayers. In my judgment, the nature of the restrictions and their duration, together with the context in which they are imposed, do amount to an interference with the right to respect for private life and do need to be justified under Article 8(2) of the ECHR. The restrictions go beyond the restrictions and limitations inherent in lawful detention and need, therefore, to be justified.[64]For completeness, I note that that conclusion is consistent with the decision of the House of Lords in R (Munjaz) v Mersey Care NHS Trust [2006] 2 A.C. 148. That case involved seclusion of patients detained in a psychiatric hospital. The applicant had been detained for four periods of time. By the time that the case came to the House of Lords, he was no longer contending that any of those periods involved a violation of Article 8 ECHR. Rather, he was contending that the Trust’s policy on medical review of seclusions (particularly, the frequency of review after seven days’ seclusion) departed from guidance issued by the Secretary of State and that gave rise to a breach of Article 8 ECHR. In that context, Lord Bingham doubted that seclusion used to protect others from violence could amount to interference within the meaning of Article 8(1) ECHR (see paragraph 32) but considered that the policy was in accordance with law. Lord Hope considered that seclusion, so long as not amounting to ill-treatment, would not as a general rule result in an interference within the meaning of Article 8(1) although his conclusions focussed on the question of whether any interference was in accordance with law and held that it was (see paragraphs 88 to 89 and 85 to 100). Lord Steyn considered that seclusion would raise issues under Article 8 ECHR (paragraph 43). Lord Brown considered that seclusion, particularly on a long term basis, could amount to an interference within the meaning of Article 8(1) ECHR and considered that the policy on seclusion in that case did involve such an interference and was not in accordance with law so could not be justified under Article 8(2) ECHR (see paragraphs 117 to 118). Lord Scott was “in complete agreement with the reasons for allowing the appeal given” by Lord Bingham and Lord Hope. In my judgment, the reasons given by both of their Lordships for allowing the appeal concerned the fact that any interference (if there were such) was in accordance with law. Lord Scott expressly agreed with Lord Brown’s observations at paragraph 117 and 118 that seclusion, particularly on a long-term basis, amounted to an interference but departed from Lord Brown on the question of Article 8(2) ECHR and held that the interference was in accordance with law (see paragraphs 101 and 102). Thus, the majority of their Lordships (Lord Steyn, Lord Scott and Lord Brown) considered, in my judgment, that seclusion of patients compulsorily detained may, in appropriate circumstances, constitute an interference with the right to respect for private life within the meaning of Article 8(1) ECHR. That is how Singh J. also read the speeches of their Lordships: see R (Dehenny) v Secretary of State for Justice [2016] EWHC 1219 (Admin) at paragraphs 132 to 151. The question in the present case does not involve patients. Nor, on my analysis of domestic law, does it involve segregation or seclusion. The question is whether the restrictions imposed in the Unit amount to an interference with Article 8(1) ECHR. The conclusion that they do is consistent with the conclusions of the majority of their Lordships in R (Munjaz) v Mersey Care NHS Trust and also with the decision of the European Court of Human Rights in the Munjaz case itself: see Munjaz v United Kingdom [2012] MHLR 351.

Justification

[65]Given the existence of an interference, the court must consider whether the interference(1) pursues a legitimate aim(2) whether it is necessary and proportionate and(3) whether it is in accordance with law (see per Lord Reed at paragraph 39 of Shahid v Scottish Ministers [2016] A.C. 428).[66]The interference does seek to pursue a legitimate aim. The restrictions imposed on the Claimant are intended to control the risk that he presents to the safety and the lives of others such as officers in the prison.[67]The next question is whether the restrictions are necessary and proportionate for that purpose. In that regard, the critical question is whether there is cogent justification for the measures that have been imposed. The appropriate test is set out in the judgment of Lord Reed, with whom the other members of the court agreed, in R (Bourgass) v Secretary of State for

Justice [2016] A.C. 384 at paragraphs 125 to 126 in the following terms:

“125.The critical question is whether the prisoner's continued segregation is justified having regard to all the relevant circumstances. Those will include the reasonableness of any apprehension that his continued association with other prisoners might lead to a breakdown in good order and discipline within the prison; the suitability of available alternatives; the potential consequences to the prisoner if authorisation is granted; and the potential consequences to others if it is not. The answer to the question requires the exercise of judgment, having regard to information and advice from a variety of sources, including the governor, health care professionals and the prisoner himself. “126 In proceedings for judicial review, the court has full jurisdiction to review evaluative judgments of that kind, considering their reasonableness in the light of the material before the decision-maker, whether the appropriate test has been applied, whether all relevant factors have been taken into account, and whether sufficient opportunity has been given to the prisoner to make representations. This court has explained that the test of unreasonableness has to be applied with sensitivity to the context, including the nature of any interests engaged and the gravity of any adverse effects on those interests: see, for example, Pham v Secretary of State for the Home Department (Open justice Society Justice Initiative intervening) [2015] 1 W.L.R. 1591. The potential consequences of prolonged segregation are so serious that a court will require a cogent justification before it is satisfied that the decision to authorise its continuation is reasonable. It should also be noted that although judicial review does not usually require the resolution of disputes of fact, or cross-examination, that is not because they lie beyond the scope of the procedure. Judicial review is a sufficiently flexible form of procedure to enable the court to deal with the situation before it as required: see, for example, R (Wilkinson) v Broadmoor Special Hospital Authority [2002] q W.L.R. 419.”
[68]In the present case, the starting point is that the Claimant was convicted in December 2015 of doing an act preparatory to terrorism. He had purchased a knife intending shortly thereafter to kill and behead a person. As is clear from the sentencing remarks of the trial judge, the Claimant considered that his beliefs entitled and required him to kill someone in revenge for events elsewhere. The trial judge assessed the Claimant as an intelligent but dangerous person who wished to kill in furtherance of his beliefs and there was no sign in the evidence that he had had any change of view.[69]In December 2015, following his conviction, the Claimant was placed in segregation. That was reviewed. The material relied upon by the authorities includes information that the Claimant had commented that, if he were convicted (as he was in December 2015), he would carry out the act that he was in prison for (that is, the act of preparing for an act of terrorism by acquiring a knife in order to kill, and behead, a person). Although the information was from an untested source, the information was material that the authorities could take into account.[70]Of particular significance, however, is the threat to a prison officer. Early, on the morning of 7 January 2016, there were reports that the Claimant was part of a group of prisoners who were hitting cell doors, stating that officers oppressed Muslims, shouting “Allahu Akbar” and uttering threats of beheading. An officer reported that, at 12.15 p.m., the Claimant became abusive and threated to behead officers and that he (the officer in question) would be first. The Claimant has accepted that he asked the officer to come into his cell. The governor to whom that explanation was given on 7 January 2016 considered that a prisoner inviting an officer into a cell on his own would be seen as a threatening act.[71]The Claimant complains that not enough was done to investigate matters and that CCTV footage could have been obtained. He has also given his explanation for what occurred. In representations dated 15 September 2016 made on his behalf by his solicitors, the Claimant said that he had merely told the officers that their behaviour was out of order and that an officer had come to his cell and the officer had made derogatory comments to him. The committee considering his transfer to the Unit in September 2016 did not find that explanation convincing and considered that it was undermined by other information (including the explanation that the Claimant had given to the governor) In a third witness statement made by the Claimant shortly before the hearing, the Claimant gave a further, somewhat different version. He says that he asked the officer to leave his cell-neighbours alone and that the officer threatened him. He said in his third witness statement that he said to the officer words to the effect of “if you are going to do what you’re going to do, like you’ve done to others, then come into my cell and do it to me”. The Claimant says that he was saying to the officer to get it over with. The meaning of the words are not entirely clear. The implication appears to be that the officer was in some way physically or verbally abusing other prisoners and the Claimant wanted to get the abuse in his case over with. If that is the implication, then it does not appear to reflect what he said to the governor on the day in question. It is also right to note that the Claimant has expressed hostility to the officer. On one occasion, he referred in a telephone conversation to the officer as being a “dirty kuffir”. In his third witness statement, the Claimant says that he used these words in that conversation to describe the officer; he was not telling the friend what he had actually said to the officer on 7 January 2017. On either account, the words used demonstrate hostility or an abusive attitude towards an officer. In my judgment, the overwhelming likelihood is that the Claimant did ask the officer to come into his cell, that that was an aggressive act and, indeed, reflects the same kind of hostility that had led to the act resulting in his conviction.[72]Furthermore, that conclusion is reinforced by the fact that, in telephone conversations with friends in May 2015 and January 2016, he continued to show an interest in the affairs of a proscribed organisation, Al-Muhajiroun . It is the case that, shortly after the fact that the authorities drew the fact of the phone calls to his attention, he stopped communicating with the individuals. The relevant fact, however, is that he was still demonstrating interest in May and June 2016 in the affairs of that organisation. The fact is that it was his beliefs which caused him to believe that he was entitled and required to kill and behead someone as an act of revenge. The trial judge saw no evidence that those beliefs had changed. Continued interest in extremist groups is a relevant factor in assessing the likelihood that the Claimant continued to pose a very real and serious risk to the lives and safety of others.[73]As regards the consequences to the Claimant, placement in the Unit would represent a relaxation of the regime imposed whilst he had been segregated. He would be able to leave his cell for exercise and to perform domestic chores. He would have daily periods when he would be out of his cell and able to associate with other prisoners. He could be assessed to see if it was safe to permit him to undertake other activities, such as visits to the library (which began on 2 February 2017), and attendance at Friday prayers (which began on 17 March 2017). There was no realistic, less restrictive alternative. Furthermore, he has access to lawyers (and has had lawyers acting from him since April 2016). They have made detailed representations on his behalf and have been able to bring legal proceedings to challenge the placement in the Unit. That contributes to avoiding any risk of improper or excessive restrictions being placed upon the Claimant which he is unable to challenge. In my judgment, considering all the material, the views of the authorities, the explanations of the Claimant and the impact of the decision on him, the decision to place the Claimant in the Unit, and the restrictions on him in that Unit to date, are cogently justified, and are proportionate given the risks that he represents to the lives and safety of others such as prison officers.[74]The final question is whether the decision to place the Claimant is in accordance with law. The Defendant accepts that it is not because of the procedural errors accompanying the decision to place the Claimant in the Unit, in particular the lack of an opportunity to comment on the transfer to the Unit (as opposed to transfer to a CSC) and the fact that he could not comment on the criteria for transfer as the up to date policy was not published and therefore not known at the time. For those reasons, the Defendant accepts that the decision of 22 September 2016 to transfer the Claimant to the Unit was unlawful and so that decision will be quashed. The Defendant accepts that the matter will need to be considered again in the light of any representations made by the Claimant and an assessment of all information, including any new information obtained.

Remedy

[75]The finding of a violation in this judgment provides just satisfaction for the Claimant. The judgment fully sets out the circumstances in which there has been an interference with the Claimant’s right to respect for his private life and the reason why the interference was not justified. A declaration is, in my judgment, neither necessary nor appropriate. Indeed, a bare declaration that there had been a violation of Article 8 ECHR would be likely to be misleading as it would not set out the circumstances (and the limited nature) of the violation which is, essentially, procedural.[76]The Claimant’s principal submission was that the placement in the Unit was not necessary or was disproportionate and he therefore, sought an order quashing his transfer to the Unit and ordering his return to what is described as a normal location. As indicated above, the placement in the Unit was a necessary and proportionate means of pursuing the legitimate aim of protecting the safety and lives of others such as officers in the prison. There was a procedural error in that the Claimant, whilst he had the opportunity to and did make representations (assisted by lawyers) on transfer to a CSC, did not have the opportunity to comment on the transfer to the Unit. That will have to be considered again by the Defendant in the light of all the up to date information including any representations by the Claimant. On the information presently before the court, the placement is necessary and proportionate.[77]Section 8(1) of the Human Rights Act 1998 (“1998 Act”) provides that a court may award damages if it is just and appropriate to do so. Damages is not necessary to ensure just satisfaction for the Claimant in the present case. The reason why there has been an interference is the procedural error relating to the decision to transfer. That decision will be quashed and the decision taken again on up to date information. The grant of that remedy is relevant to the need for any award of damages: see section 8(3) of the 1998 Act. On the facts of this case, the possibility that any representations made by the Claimant as to the transfer from segregation to the Unit so that he would not have been in the Unit from 2 November 2016 to the present time is remote. The Claimant refers in his witness statements to the effect of being in the Unit, and his sense of feeling depressed and hopeless. There is, however, no medical evidence of any severe or permanent injury to health arising out of the time spent in the Unit. Having regard to the considerations referred to in Shahid v Scottish Ministers [2016] A.C. 429 at paragraphs 87 to 90 and see, also, by analogy, paragraph 176 of the decision in R (Dennehey) v Secretary of State for Justice [2016] EWHC 1219 (Admin.) this is not a case where an award of damages is required to ensure just satisfaction. CONCLUSION 78 The placement of the Claimant in the Unit did not involve removal from association with other prisoners within the meaning of rule 45 of the Rules. The decision to transfer the Claimant to the Unit was, however, procedurally flawed as the Claimant was not given the opportunity to comment on the transfer on the basis of the current policy governing the Unit. For that reason, the decision of 22 September 2016 transferring the Claimant to the Unit will be quashed and the matter will need to be reconsidered in the light of any representations by the Claimant and all up to date information. The restrictions placed upon the Claimant within the Unit did amount to an interference with the right to respect for private life within the meaning of Article 8(1) ECHR. They were necessary and proportionate measures done in pursuance of a legitimate aim, namely the protection of the lives and the safety of others within the prison such as prison officers. They were not in accordance with law as the decision to transfer the Claimant to the Unit was procedurally flawed as a matter of domestic law.

Cited in 4 later judgments