Prisoner’s rights not breached by segregation
3 February 2014
Shahid v The Scottish Ministers [2014] ScotCS CSIH – 18 – read judgment
Solitary confinement of a dangerous prisoner in accordance with the prison rules was neither unlawful nor in breach of his Convention rights, the Scottish Court of Session has ruled.
The petitioner (as we shall call him to avoid confusion, rather than the more accurate “reclaimer”) was serving a life sentence for what the court described as a “brutal and sadistic” racially motivated murder of a 15 year old white boy in 2006. Apart from a short period during his trial he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners (“mainstream”). He claimed that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to Article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and Article 8, which protects the right to private life. He sought declarations to that effect and £6,000 by way of damages.
Background facts
Throughout his detention, the prison authorities had been in receipt of intelligence to the effect that other prisoners intended to assault the petitioner and his co-accused, they being regarded as “beasts”. There was a “real concern” that other prisoners would carry out a revenge racial attack on the petitioner. Similarly, the petitioner had stated to the authorities that he would seriously assault any prisoner who he saw as a threat if he was to return to the mainstream environment and understood the requirement for him to be located separately and safely. Indeed several threats to his safety had been made and a prison magazine carried an article stating that there was a “contract” on the petitioner for £5,000 for a prisoner to slash or scald him.Equally it was noted that on a number of occasions when the petitioner was being escorted from the unit for visits, etc, he would attempt to intimidate other prisoners. Attempts were made to reintegrate the petitioner, but they did not go well. In early October 2010 there was a return to segregation for one month after the petitioner was involved in an orchestrated fight with other prisoners from one hall against prisoners from another hall. Thereafter he was moved to the mainstream prison population.
In the hearing below the Lord Ordinary had considered the challenge under Article three and considered whether the petitioner had been treated in an “inhuman or degrading manner”. He found that, given the nature of the petitioner’s crime, there was nothing inherently surprising in the problems that faced the prison authorities.
Furthermore, the authorities required to have regard to the petitioner’s rights and their obligations under article 2 of the convention, which protects the right to life. In deciding whether what happened was inhuman or degrading, the Lord Ordinary considered it highly relevant that the petitioner’s segregation was designed to protect him from serious injury or worse. The European case law demonstrated that prison authorities were under an obligation to safeguard the health of persons in custody.
Throughout his sentence, the goal of the prison authorities had been to return the petitioner to mainstream. In those circumstances the Lord Ordinary refused to conclude from the fact that reintegration was achieved in 2010 that there had been no good or sufficient reason for the measures taken previously, nor that by then they have become arbitrary and disproportionate.
The Court of Session agreed with both the decision of the Lord Ordinary and his reasons. The three judge panel set out in their own words why they considered that the petitioner’s claims were entirely ill-founded.
Reasoning behind the decision
- Prison rules: lawfulness
The legality of the segregation had to be considered in the context in which the rules governing it operate. That context is that in Scottish prisons, association with other prisoners is a privilege, not a right, because the privilege of association may be withdrawn at any time. It was clear that there was very general ill feeling against the petitioner on account of the brutal nature of the murder of which he had been convicted. In these circumstances it was plainly not practicable to segregate the prisoners making the threats. Instead, for the petitioner’s own protection, it was decided that he should be segregated. The threats to the petitioner were serious, and the information about them was based on reliable intelligence. The prison authorities have an obligation to ensure the safety of prisoners, and in the circumstances segregation of the petitioner was considered to be the only reliable means of securing his safety. All the relevant case law supported the proposition that mere failure to observe the time limits specified in rule 94(5) and (6) of the Prison Rules would not invalidate the continuing segregation.
2. Article 3 of the European Convention on Human Rights
The Court viewed this claim as manifestly unfounded. In the Strasbourg case of Ramírez Sánchez v France (2007) 45 EHRR 49 much harsher conditions were held to be a justified infringement of the applicant’s Article 3 rights. The European Court of Human Rights considered that “the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment” (paragraph 123). In another case that Court concluded that solitary confinement had not been justified, because the reasons for the segregation had been unclear and had never been explained to the applicant prisoner (Onoufriou v Cyprus, [2010] ECHR 24407/04). That was “quite distinct” from the present case, where reasons had been provided throughout the period of segregation and where it was clear that there was reliable intelligence to support the need for segregation. In Razvyazkin v Russia, [2012] ECHR 13579/09, the Strasbourg Court stressed that,
for article 3 to come into play, the suffering and humiliation involved must… go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. [para 90]
For solitary confinement to be permissible in terms of article 3, a number of other conditions must be satisfied, but the Court of Session judges were of opinion that all of these had been met in the present case; first, because there was a pressing purpose for the segregation, secondly because there were proper procedural safeguards in place, and third because adequate reasons had been given – to protect the petitioner from violence threatened by the other prisoners.
There was also a clear risk that he would become involved in fights with other prisoners, threatening good order within the prison. Those matters did not change. In those circumstances there was no reason why the reasons given should change. [para 44]
Article 8 of the European Convention on Human Rights
Anther “wholly unfounded” contention. The measures taken to protect the petitioner in this case had been wholly proportionate. It was equally important and legitimate to maintain order within the prison walls:
The reclaimer was initially segregated because of an attack that he and others had made on another prisoner. He subsequently made threats against other prisoners, and it seems clear that he was willing to run the risk of attack because he thought that he could acquit himself well in a fight. In these circumstances we consider that the reclaimer’s own wishes count for relatively little; it was important that the prison authorities should maintain order within the prison. [para 48]
For these reasons the Court rejected the appeal (or “refused the reclaiming motion”).
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