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Bourgass & Anor, R (on the application of) v Secretary of State for Justice
Factual and Procedural Background
Two high-security prisoners (“Appellant 1” and “Appellant 2”) were each held in solitary confinement (“segregation”) for many months in separate prisons (“Prison A” and “Prison B”). Under rule 45(1) of the Prison Rules 1999 a governor may segregate a prisoner for up to 72 hours. In both cases continued segregation was purportedly “authorised” every 14 days by senior prison staff who chaired the Segregation Review Board (“SRB”). The Secretary of State’s non-statutory Prison Service Order 1700 (“PSO 1700”) purported to permit that practice.
Each appellant began judicial-review proceedings challenging (i) the legality of the authorisations and (ii) the fairness of the procedures used. A single judge of the High Court and later the Court of Appeal dismissed the claims. The Supreme Court (Judge Reed giving the lead opinion, with Judges Neuberger, Hale, Sumption and Hodge concurring) heard the combined appeals.
Legal Issues Presented
- Whether continued segregation beyond 72 hours was lawfully authorised under rule 45(2) when the decision was taken by an “operational manager” rather than by the Secretary of State.
- Whether, as a matter of common-law procedural fairness, a segregated prisoner is entitled to adequate disclosure of the reasons for segregation and an opportunity to make representations.
- Whether Article 6(1) of the European Convention on Human Rights applies to segregation decisions and, if so, whether judicial review provides sufficient independent oversight.
Arguments of the Parties
Appellants’ Arguments
- Rule 45(2) requires personal or properly delegated authority of the Secretary of State; decisions by prison staff under PSO 1700 are ultra vires.
- Governors are independent statutory office-holders; therefore the Carltona principle cannot treat their decisions as those of the Secretary of State.
- Prolonged segregation without meaningful disclosure breaches common-law fairness and Article 6(1).
Secretary of State’s Arguments
- By virtue of the Carltona principle, a governor or operational manager acts as the Secretary of State when authorising segregation; alternatively, “Secretary of State” in rule 45(2) includes senior prison officers.
- PSO 1700 constituted a lawful delegation.
- Fairness is satisfied by providing prisoners with the “gist” of the case; wider disclosure would endanger security.
- Article 6(1) is inapplicable; even if applicable, judicial review supplies the necessary independent control.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 | Acts of officials can be treated as acts of the minister. | Distinguished: governors are independent statutory office-holders, so Carltona does not apply to rule 45(2). |
| Lewisham BC v Roberts [1949] 2 KB 608 | Nature of departmental decision-making. | Cited to explain limits of Carltona. |
| R v SSHD ex p Oladehinde [1991] 1 AC 254 | Carltona may apply unless excluded by statute. | Supports proposition that statutory context can displace Carltona. |
| R v SSD ex p Sherwin (1996) 32 BMLR 1 | Relationship between agency staff and ministers. | Held not analogous to prison context; no assumption that same structure exists. |
| Castle v DPP [2014] EWHC 587 (Admin) | Agency delegation issues. | Similarly distinguished. |
| Leech v Deputy Governor of Parkhurst [1988] AC 533 | Governor’s disciplinary powers are independent. | Relied on to characterise governors as separate statutory decision-makers. |
| R v Deputy Governor of Parkhurst ex p Hague [1992] AC 58 | Segregation must combine governor’s view and external authorisation. | Supported the need for Secretary of State’s distinct authorisation. |
| Somerville v Scottish Ministers [2007] UKHL 44 | Parallel Scottish rule; governor’s and minister’s functions distinct. | Analogous reasoning applied to English rule 45. |
| R v Governor of Brixton Prison ex p Walsh [1985] AC 154 | Delegation references. | Found unhelpful; did not assist Secretary of State. |
| R v SSHD ex p Hickling [1986] 1 FLR 543 | Secretary of State laying down criteria rather than delegating. | Shown as example where Carltona did not arise. |
| R v SSHD ex p Doody [1994] 1 AC 531 | Common-law procedural fairness. | Forms basis for requiring meaningful prisoner participation. |
| R (Osborn) v Parole Board [2013] UKSC 61 | Instrumental and ethical rationales for fairness. | Applied to segregation context. |
| Payne v Lord Harris of Greenwich [1981] 1 WLR 754 | Earlier restrictive view on disclosure. | Held no longer good law. |
| Tsfayo v United Kingdom (2009) 48 EHRR 18 | Article 6 requires “full jurisdiction” review. | Discussed in considering adequacy of judicial review. |
| Ganci v Italy (2005) 41 EHRR 16 | Art 6 applicability to prisoner rights. | Reviewed in comparative analysis. |
| Gülmez v Turkey (20 May 2008) | Art 6 and disciplinary sanctions. | Considered but distinguished by Court. |
| Enea v Italy (2010) 51 EHRR 3 | Art 6 applicability where domestic rights recognised. | Grand Chamber reasoning followed. |
| Stegarescu v Portugal (6 Apr 2010) | Segregation and Art 6. | Not followed; seen as minority line. |
| Nusret Kaya v Turkey (22 Apr 2014) | Prison telephone restrictions and Art 6. | Part of comparative survey. |
| Boulois v Luxembourg (2012) 55 EHRR 32 | Grand Chamber on scope of Art 6. | Cited to emphasise need for domestically recognised right. |
| Marin Kostov v Bulgaria (24 Jul 2012) | Art 6 and solitary confinement as disciplinary punishment. | Discussed for contrast. |
| Raymond v Honey [1983] 1 AC 1 | Prisoners retain civil rights not expressly removed. | Cited; but “residual liberty” concept rejected. |
| R (Daly) v SSHD [2001] UKHL 26 | Extent of prisoners’ retained rights. | Supports rejection of residual liberty to associate. |
| R (A) v Croydon LBC [2009] UKSC 8 | Article 6 and public-law disputes. | Used to frame Art 6 analysis. |
| Ali v Birmingham CC [2010] UKSC 8 | Definition of “civil right” in public-law context. | Applied by analogy. |
| R (Alconbury) v Secretary of State [2001] UKHL 23 | Meaning of “full jurisdiction”. | Relied on to show JR can satisfy Art 6. |
| Pham v SSHD [2015] UKSC 19 | Intensity of review in serious cases. | Referenced in describing JR’s scrutiny. |
| R (Wilkinson) v Broadmoor Hospital [2001] EWCA Civ 1545 | Flexibility of judicial review procedure. | Cited to show JR can resolve factual issues when required. |
Court's Reasoning and Analysis
1. Statutory framework. The Prison Act 1952 establishes governors as independent statutory office-holders with custody of prisoners and confers separate powers on the Secretary of State. Rule 45(1) allows a governor to commence segregation; rule 45(2) explicitly withholds authority for periods beyond 72 hours unless the Secretary of State agrees.
2. Rejection of the Carltona argument. Unlike departmental officials, governors are not mere agents of the minister. Precedents such as Leech, Hague and Somerville establish that their powers are personal and cannot be treated as ministerial acts. Therefore an operational manager’s signature cannot constitute the Secretary of State’s “authority” under rule 45(2).
3. Invalidity of PSO 1700. Because PSO 1700 purports to confer the Secretary of State’s authorising power on SRB chairpersons inside the prison, it conflicts with rule 45(2) and is ultra vires. Consequently, all post-72-hour segregation decisions in these cases lacked lawful authority.
4. Procedural fairness. Applying Doody and Osborn, fairness demands that before the Secretary of State grants continued segregation the prisoner must (a) receive the substance of the reasons and (b) have a real opportunity to respond. The sparse, shifting explanations given to both appellants fell far short of that standard.
5. Article 6(1). Reviewing Strasbourg jurisprudence, the Court held that segregation decisions do not determine a “civil right” recognised in domestic law; hence Article 6(1) is not engaged. Even if it were, English judicial review affords a sufficiently intensive and flexible remedy.
Holding and Implications
HOLDING: APPEALS ALLOWED; the segregation of both appellants beyond 72 hours was unlawful because it lacked valid authorisation under rule 45(2).
Implications: Prison staff within an establishment can no longer rely on PSO 1700 to authorise segregation after 72 hours; external officials acting for the Secretary of State must give express, timely authority. Governors must provide segregated prisoners with meaningful reasons and an opportunity to make representations. Although Article 6 does not apply, the decision clarifies the high level of scrutiny judicial review will apply to prolonged solitary confinement. No new precedent was set on the Convention point, but significant operational changes to segregation procedures are required across the prison estate.
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