Segregation of prisoners beyond initially authorised period without official consideration was unlawful


Re: R (Bourgass & Anor) v Secretary of State for Justice [2015] UKSC 54

On appeal from: [2012] EWCA Civ 376

The Supreme Court unanimously allowed the appeal regarding the decisions to place and/or keep the appellant prisoners in segregation for substantial periods of time, and granted a declaration in each case that the appellant’s segregation beyond the initial period of 72 hours was not authorised and was therefore unlawful.

Giving the lead judgment Lord Reed stated that the decisions taken to authorise the segregation under the Prison Rules 1999, rule 45(2), was not taken by the Secretary of State but instead by a senior prison officer. He reasoned that Rule 45(2) is intended to provide a safeguard for the prisoner against excessively prolonged segregation by the local prison management. It can only operate as a safeguard if it ensures that segregation does not continue for a prolonged period without being considered by officials who are independent of the prison. It therefore follows that the Carltona principle cannot apply to rule 45(2) so as to enable a governor to take the decision on the Secretary of State’s behalf.

That alone was sufficient enough to allow the appeals but in regards to procedural fairness, Lord Reed also believed more could and should have been said and done in the present cases to give the prisoners a reasonable opportunity to make representations before a decision is taken to authorise continued segregation. The Court, however, rejected an argument that there had been a breach of Art 6 finding that Art 6 was not engaged and that, in any event, judicial review provided adequate access to an independent tribunal to challenge segregation.

Dan Squires was involved in this case.