Solitary confinement ordered unlawfully, Supreme Court rules
Scottish ministers had no power to make an order that a prisoner be kept in solitary confinement after the initial 72 hour period authorised by the prison governor under the rules in force had already expired, the UK Supreme Court ruled today.
Five judges unanimously overturned a decision of the Inner House and held that Imran Shahid had been unlawfully segregated during three separate periods totalling 14 months (out of 56 months spent in segregation), while held in different prisons in Scotland for the racially aggravated murder of schoolboy Kriss Donald in Glasgow.
Shahid had been considered at risk of attack by other prisoners and his segregation was initially authorised by a governor under rule 94 of the Prisons and Young Offender Institution Scotland Rules 2006 or its predecessor provision, which permits segregation for up to 72 hours. Segregation beyond that time may be authorised for up to a month by ministers, "prior to the expiry of" the 72 hours, on the governor's application, and can be renewed from month to month.
Shahid sought orders declaring that for the periods in question his segregation was in breach of the rules, and violated article 3 of the European Convention on Human Rights, the prohibition against torture, inhuman and degrading treatment, and article 8, the right to respect for private life. His petition for judicial review was refused in the Outer and Inner House.
Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agreed, said that rule 94(5) and (6) meant that segregation should not continue beyond the initial 72 hours unless the ministers’ authority had been granted before the 72 hours had expired. That authority took effect from the expiry of the 72 hour period and a late authority by ministers could not have effect. This was consistent with the purpose of the legislation, to provide a safeguard for the protection of the prisoner.
On the three occasions when authority was granted late, that authority was invalid, and incapable of renewal. However it was accepted that Shahid was not prejudiced as a result.
Regarding his Convention rights, the conditions of segregation and the measures imposed were not in themselves in breach of article 3, where he was placed in segregation in the interests of his own safety, and there was a genuine and reasonable concern that he was at risk of serious injury or worse. The isolation he experienced was partial and relative, and while his conditions could have been improved, his segregation did not attain the minimum level of severity required for a violation of article 3.
On article 8, the segregation pursued a legitimate aim, namely the protection of Shahid’s safety. However, during the periods in which he was segregated without valid authorisation under the Prison Rules, his segregation was not in accordance with the law. Additionally, where governors did not act in the exercise of their own independent judgment but on the basis that the decision had already been made by the Executive Committee for the Management of Difficult Prisoners, a body which was not entrusted with the power to make such a decision, this invalidated subsequent decision-making by the ministers, no valid application having been made to them. This breach of domestic law also resulted in a violation of article 8, and ministers had failed to establish that segregation for the entire period was proportionate, though on the facts no prejudice had resulted.
Just satisfaction could therefore be afforded simply by making a declaratory order, with costs.