Does the Segregation of Prisoners Violate the ECHR?

Raja Anwar Hamza Khan
Raja Anwar Hamza Khan

The Supreme Court case of Shahid v Scottish ministers [2015] UKSC 58 considered whether the segregation of prisoners is a violation of Article 3 (prohibition of torture and inhuman treatment) and Article 8 (right to a private life) of the European Convention of Human Rights (ECHR). In the case of Shahid, English law is shown to be unequivocal in holding the prolonged segregation of prisoners as a clear impediment to Article 8.  However, it was held that there had been no breach of Article 3.

Facts

The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy.

The decision to continue the segregation was based on a high threat of potential violence towards the appellant from other prisoners due to the extent of media coverage of his crime. As stipulated in section 94(1)(b) of the Prisons and Young Offenders Institution Scotland Rule 2006, solitary confinement of the appellant was justified for his safety: “[segregation of the prisoner for the purpose of] protecting the interest of any prisoner”.

The period of solitary confinement continued until the appellant’s eventual reintegration into the general prison population in August 2010.

The appellant initially challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The appellant was unsuccessful as the Scottish courts held that his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, of the ECHR.

However, the Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8 ECHR.

 

Issues and Judgment

The Lords were faced with three issues:

  1. Whether the segregation of the appellant had been compliant with domestic law (Prisons and Young Offenders Institution Scotland rule 2006).

    Imran Shahid
    Imran Shahid
  2. To ascertain if the segregation had infringed Article 3.
  3. To ascertain if the segregation had infringed Article 8

Domestic Law

The Supreme Court, as opposed to the lower courts, narrowed their focus mainly to s.94(5) of the 2006 Rules. The rule states:

a “prisoner taking part in a prescribed activity by virtue of an order made by the governor shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority on the application of the Governor, prior to the expiry of the said period of 72 hours.”

Failure to authorise the segregation in the required 72 hours led to a 14 month period of invalid segregation of the appellant. Lord Reed further reasoned that the requirement of granting a renewal order to keep the prisoner in segregation for more than 72 hours elucidates that the intention of segregation is temporary in nature; therefore, it is imperative for the minister to reconsider any grounds of segregation.

It was held that the appellant had suffered no prejudice and was not entitled to remedy in damages solely due to the breach of s.94(5). However, the breach of the 2006 Rules did contribute to the discussion of Convention Article 8.

ECHR Article 3

Article 3 states:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Lords quite bluntly held that the segregation had not led to conditions where Article 3 applies. The fair condition of the cell and its surrounding did not allow any possibility of degrading treatment. Similarly, the appellant had also received medical consideration. As a result of these elements, the minimum level of degradation required had not been met.

ECHR Article 8

The third, and the most potent, issue faced by the court was to determine whether Article 8 had been breached. Article 8 states:

1) “Everyone has the right to respect for his private and family life, his home and his correspondence.”

2) “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The questions that arose are accordingly:

  1. Whether the appellant’s segregation pursued a legitimate aim;
  2. Whether it was in accordance with the law;
  3. Whether it was necessary and proportionate in order to achieve the legitimate aim pursued.

The appellant’s segregation was for this own safety, so it was confirmed to have pursued a legitimate aim.

However, the second limb failed to meet the requirement, as segregation was done for many weeks without valid authorization by the minister, which is expressly provided in s.94(5).

Likewise for the third limb, Lord Reed ardently pronounced that the continued segregation had not been proportionate. The crux for whether segregation was proportionate was in the failure of the state to approach the possible alternatives to solitary confinement. The state could have taken measures to identify particular locations for the prolonged accommodation for prisoners who are unsuitable for mainstream accommodation; such locations would accommodate small groups of prisoners with reduced levels of association and increased officer supervision.

The appellant was found to have been held in segregation without lawful authority and Article 8 of the ECHR had been breached. The appellant was entitled to costs of the appeal and the expenses of the Courts of Session proceedings.

Commentary

Although the facts are straightforward in this case, Lord Reed’s judgment brilliantly handled the subtleties in the application of the law; in particular, the breach of domestic law was intelligently applied to the discussion of Article 8. The judgment is correctly decided since the facts of the case show the appellant had been segregated without proper authorisation; thus Art 8(2) of the ECHR had been breached.

The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.

However, if the 72-hour limitation is applied strictly, there can be practical drawbacks. In a situation where continued segregation did not have the required authorisation, would prison officials then be under a duty to return the appellant to the general population of prisoners even if this would endanger his own safety?

Similarly, in the case of Razvyazkin v Russia, it was held the longer segregation is continued, the stronger the reason must be for it, and the more must be done to ensure that it achieves its purpose. On the facts of Shahid, as found by the lower courts, it can be argued that there was strong reason for finding solitary confinement as being proportionate by considering the violent propensity of threats, which Lord Reed stated to be incorrect. The alternatives of Lord Reed have a negative bearing on the state expenditure by warranting new accommodations with increased supervision for these prisoners. Thus, this may bring forward serious policy considerations.

Raja Hamza Anwar Khan is a second year student at Sussex Law School.

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