This case has now been reported in full in The Weekly Law Reports as Shahid v Scottish Ministers [2015] 3 WLR 1003, SC(Sc).

PRISONS — Prisoners’ rights — Segregation — Prisoner charged with and subsequently convicted of racially motivated murder of 15-year-old boy — Prisoner placed in segregation for protection following threats to safety from other prisoners and remaining in segregation for 56 months — Certain decisions to maintain segregation taken out of time and in deference to advisory body lacking statutory decision-making authority — Whether segregation lawful — Whether in breach of Convention rights — Whether damages award necessary to afford just satisfaction — Whether declaration and costs award sufficient — Human Rights Act 1998, s 8, Sch 1, Pt I, arts 3, 8 — Prisons and Young Offenders Institutions (Scotland) Rules 2006, r 94

Shahid v Scottish Ministers

[2015] UKSC 58; [2015] WLR (D) 409

SC: Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Sumption, Lord Reed, Lord Hodge JJSC : 14 October 2015

On the plain meaning of rule 94(5)(6) of the Prisons and Young Offenders Institutions (Scotland) Rules 2006, decisions imposing segregation orders beyond the initial period of 72 hours could only be made where the ministers’ authority to extend segregation had been given prior to the expiry of the 72 hour period. Failure to observe that requirement rendered such a decision and any subsequent renewals based on it unlawful.

A prisoner’s rights under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms were accordingly violated where authorisations for his continued segregation were made out of time. Such rights were further breached where segregation decisions were made by local governors in deference to the prior decisions of an advisory body with no statutory power to make them.

Given the actual or potential harm which segregation might cause a prisoner, the longer it continued the greater the need for justification and the more demanding the scrutiny required by the court. In failing to consider alternative courses and to devise timeously a management plan for his integration into the mainstream regime, the maintenance of the prisoner’s 56-month segregation was not proportionate. However, applying the jurisprudence of the European Court of Human Rights, just satisfaction could, in the circumstances, be afforded by declaratory relief and an award of costs.

The Supreme Court so held when allowing an appeal by the prisoner, Imran Shahid, a prisoner serving a life sentence at various Scottish prisons, from an Extra Division of the Inner House of the Court of Session (Lord Menzies, Lord Drummond Young and Lord Wheatley) [2014] CSIH 18A, 2014 SC 490 on 31 January 2014 to dismiss his appeal from the decision of the Lord Ordinary (Malcolm) [2011] CSOH 192; 2012 SLT 179 who on 18 November 2011 had refused his application for judicial review by way of declaratory relief that (1) certain decisions and renewals by ministers ordering his segregation at a number of Scottish prisons breached the 2006 Rules because they had been made out of time, (2) certain segregation decisions breached domestic law because they had been made by local governors in deference to a non-statutory body with no power to make such decisions; (3) his segregation violated his rights under articles 3 and 8 of the Convention, and (4) he was entitled to an award of damages as just satisfaction under section 8 of the Human Rights Act 1998.

Due to fears for his safety the prisoner had been segregated in 2005 when on remand under rule 80 of the Prisons and Young Offenders Institutions (Scotland) Rules 1994 which corresponded for present purposes with rule 94 of the 2006 Rules. During his trial he had been transferred to mainstream conditions but on conviction in November 2008 he had been placed on segregation under the 2006 Rules until August 2010.

LORD REED JSC, with whom the other members of the court agreed, said that rule 94(5) plainly meant that a segregation order made by a prison governor under rule 94(1) was not to continue beyond the initial 72 hours from the time of the order unless authority had been granted before the 72-hour period had expired. Rule 94(6) made it clear that authority for renewal took effect from the expiry of the 72-hour period. A late authority granted by the minister after expiry of the 72 hours was invalid and incapable of renewal. That was consistent with the legislative purpose, to provide a safeguard for the prisoner’s protection, thereby ensuring that segregation was reviewed within a short time by officials external to the prison and that it was maintained only for so long as necessary: see, in relation to the corresponding English rule, R (Bourgass) v Secretary of State for Justice (Howard League for Penal Reform intervening) [2015] 3 WLR 457.

Having regard to the jurisprudence of the European Court of Human Rights, the prisoner’s treatment did not attain the severity required for a violation of article 3: compare Ramirez Sanchez v France (2006) 45 EHRR 1099. However, segregation was an interference with the prisoner’s rights under article 8.1 and therefore had to be justified under article 8.2. Segregation pursued the legitimate aim of protecting the prisoner. Where the prisoner had been segregated without valid authorisation under the Rules, his segregation was not in accordance with the law and his rights under article 8 were breached. Nor was his segregation lawful to the extent that (a) a number of segregation decisions, or applications for continuation, had been formulaic and repetitive and did not indicate any genuine consideration of the question whether it was necessary to continue the segregation; and (b) many decisions appeared to have given formal effect to prior decisions of the Executive Committee for the Management of Difficult Prisoners which had no status under the Rules and was an advisory, non-statutory body.

It was a rule of domestic administrative law that a statutory power of decision-making had to be exercised by the person on whom the power had been conferred. The only reasonable conclusion was that some decisions of the local management to segregate the prisoner, to apply for continuation under rule 94(5) or for renewal under rule 94(6) had not been taken in the exercise of their own independent judgment, but deferred to prior decisions of the Executive Committee. That breach of domestic law also resulted in a violation of article 8. On the issue of proportionality, the prisoner’s case presented the prison management with a very difficult problem. In view of the length of the segregation, a rigorous examination was required of the court to determine whether the measures taken had been necessary and proportionate compared with alternative courses of action. Because the actual or potential harm of segregation increased the longer the segregation, the seriousness of the risk of harm required to justify it became correspondingly greater and the court would be more demanding in scrutinising whether segregation was the only means of addressing the risk. In the particular circumstances, no consideration had been given to the possibility of transferring the prisoner elsewhere in the UK and no meaningful plan had been put in place until the prisoner had been segregated for 55 months. The Scottish ministers had failed to establish that segregation was proportionate. In the circumstances, and applying the jurisprudence of the European Court of Human Rights, just satisfaction could be afforded by a declaratory order establishing that the prisoner’s Convention rights under article 8 had been violated and by making an appropriate award of costs.

Appearances

Kenny McBrearty QC, Chris Pirie and Tony Kelly (instructed by Taylor and Kelly, Coatbridge) for the prisoner.

Gerry Moynihan QC and Douglas Ross (instructed by Head of Litigation Division, Scottish Government Legal Directorate , Edinburgh) for the Scottish Ministers.

Reported by: Diana Procter, Barrister.

© 2015. The Incorporated Council of Law Reporting for England and Wales.