Prisoners' solitary confinement not properly authorised: Supreme Court

Two prisoners whose continued segregation in solitary confinement was authorised by various prison officials purportedly acting under the authority of the Secretary of State, have won a challenge by judicial review proceedings after the UK Supreme Court ruled today that the decisions were taken without lawful authority.

Five judges reversed the decisions of the High Court and Court of Appeal and held that Kamel Bourgass and Tanvir Hussain, who had separately been segregated after incidents at the prisons where they were being held, had been segregated unlawfully and not in compliance with the Prison Rules applicable in England & Wales, which are similar in this respect to those applicable in Scotland.

The rules required that prisoners should not be segregated for more than 72 hours “without the authority of the Secretary of State”. Authority in each case was purportedly given by the prison's segregation review board. The Secretary of State argued that the decision of the operational manager was the decision of the Secretary of the State, by virtue of the Carltona principle (Carltona Ltd v Commissioners of Works (1943)), under which a decision of a departmental official is constitutionally the decision of the minister himself.

However Lord Reed, giving the judgment of a court that also comprised Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge, ruled that the relationship between governors and other prison officers on the one hand, and the Secretary of State on the other, was the subject of specific legislation, which was "not readily reconciled with the idea that prison governors and officers, and the Secretary of State, are constitutionally indistinguishable".

He added: "It is apparent that the arrangements governing the relationship between the Secretary of State and prison governors, established by the [Prison Act 1952] and the rules, bear no resemblance to those governing the relationship between a minister and his departmental officials."

The rule requiring the Secretary of State's authority could only operate as a safeguard if it ensured that segregation did not continue for a prolonged period without being considered by officials who were independent of the prison. It followed that the Carltona principle could not apply to rule 45(2) so as to enable a governor to take the decision on the Secretary of State’s behalf.

Looking at the separate issue of procedural fairness, which had been the focus in the courts below, common law fairness required that a prisoner should normally have a reasonable opportunity to make representations before a decision was taken to authorise continued segregation, which normally meant being informed of the substance of the matters on the basis of which authority was sought. In the present cases, more could and should have been said. It was not however a matter falling under article 6(1) of the Human Rights Convention.

Click here to view the judgment.