All by myself: segregation, prisons and Article 6

30 March 2012 by Isabel McArdle

Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376 Read decision

The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.

The Court of Appeal has found that internal decisions made by prison governors and segregation review boards as to whether to confine a prisoner to his or her cell are not determinations of civil rights (which would have meant that Article 6 protections applied –  Article 6 providing the right to a fair trial) and that the procedures for making such decisions are Article 6 compliant, when viewed in their entirety.

Several prisoners have appealed a finding that the decisions confining them to their cells for reasons such as refusing to obey orders or attacking another prisoner were unlawful because they were not made using a process compliant with Article 6, that is by an independent and impartial tribunal established by law.

Was Article 6 engaged?

The prisoners argued that they had a right to associate with fellow inmates and this right was of the sort to which Article 6 protections apply (a “civil right”).

Maurice Kay LJ, giving the majority view, considered the authorities and stated at paragraph 36-37,

…there is nothing in the Strasbourg authorities which requires Article 6 compliance at the stage of the administrative decision to segregate or to continue segregation. Nor does any domestic authority require anything amounting to it at that stage. The question whether there is a “civil right” of association with other prisoners is a difficult one … the Strasbourg cases do not unequivocally establish one as a matter of Convention law. They generally emphasise rights such as family visits. Nor do the [Young Offender Institution] Rules or the Prison Rules expressly confer a right to associate with other prisoners.

But could there be an implied right to associate with other inmates, sufficient to constitute a civil right? He preferred to see association with other prisoners as a “normal privilege”, not a right. This does not mean it can be withdrawn at will. Its withdrawal is subject to judicial review (review by the courts of administrative decisions).

He stressed that it was the factual rather than the conceptual circumstances which were particularly important in considering whether an Article 6 compliant procedure should be adopted. It was highlighted that decisions about preventing prisoners from associating with one another are often necessarily made on an urgent basis, for example where credible information comes to light that an escape is about to be attempted. The initial decision was not Article 6 compliant, not being made by an independent and impartial tribunal established by law, but the availability of Judicial Review meant that the process as a whole complied with Article 6.

Another route to Article 6?

The prisoners argued that, if there was no a civil right to associate with other prisoners, their Article 3 and 8 rights were engaged by decisions to suspend their interaction with other prisoners and therefore the decision making process had to be Article 6 compliant.

Maurice Kay LJ considered that in some of the cases, Article 8 may be engaged although he rejected the engagement of Article 3 in all the cases. However, this did not mean that the initial decision making process had to be Article 6 compliant: it was an administrative decision making process which engaged Convention rights, not a decision about whether such rights had in fact been  violated. It would be “absurd” if every time a public body took a decision which might engage Convention rights, the decision making process had to be Article 6 compliant.

The role of judicial review

The Court went on to consider the hypothetical situation where Article 6 was engaged by the decision making process and whether the lack of Article 6 compliance in the initial decision was cured by the availability of judicial review. The Court considered that this would be the case. It was influenced by matters such as that the prison governors involved were well-placed to take the initial decision, given their on-going knowledge of the prison environment and experience with the prisoners in question. Once the decision was reviewed by a segregation review board, a wide-range of different specialists had input which further enhanced the quality of the decision. The safeguard of judicial review also being available meant that the process, taken as a whole, would be Article 6 compliant.

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