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Thakrar, R (On the Application Of) v Secretary of State for Justice (Rev1)
Factual and Procedural Background
The Appellant is a life-sentenced prisoner who has been managed within the Close Supervision Centre (CSC) estate and held on multiple occasions in Designated Cells (DCs). Following a serious assault on staff in 2010 while at Prison A, he was transferred into the CSC system at Prison B and thereafter remained segregated, being moved between multiple prisons (Prison C, Prison D, Prison E, Prison F). In April 2021 he was placed in a DC at Prison D and later transferred to a DC at Prison E where much of the challenged period occurred. The Appellant brought judicial review proceedings (issued July 2022) advancing seven grounds contending that his ongoing segregation breached Articles 3, 8 and 14 ECHR and common law procedural fairness, and challenging the lawfulness of the Respondent's policy on use of DCs. The High Court (Judge McGowan) dismissed the claim on 5 February 2024. Permission to appeal to the Court of Appeal was granted by Judge Warby on eight of nine grounds. The Court of Appeal heard the appeal and delivered judgment dismissing the appeal.
Legal Issues Presented
- Whether the Appellant's prolonged segregation amounted to inhuman or degrading treatment contrary to Article 3 ECHR.
- Whether the Respondent's policy and use of Designated Cells created a significant risk of Article 3 breaches.
- Whether the Respondent breached common law procedural fairness by failing to give adequate reasons for ongoing segregation.
- Whether the CSC Management Committee (CSCMC) complied with Rule 46(1) by conducting separate and adequate monthly reviews of placement within the CSC estate and of removal from association.
- Whether the Appellant's segregation interfered with Article 8 ECHR rights and, if so, whether the interference was justified and proportionate.
- Whether there was unlawful discrimination contrary to Article 14 ECHR taken with Articles 3 or 8, by comparison of safeguards under Rules 45 and 46 of the Prison Rules 1999.
- Questions as to the appropriate burden and standard of proof in Article 3 claims arising from segregation.
Arguments of the Parties
Appellant's Arguments
- Prolonged segregation in DCs and under the CSC regime amounted to inhuman and degrading treatment (Article 3).
- The CSC operating manual and application of DCs created a systemic risk of Article 3 breaches.
- The Respondent failed to give adequate reasons and thereby breached procedural fairness/common law requirements.
- The CSCMC did not carry out the required separate monthly reviews of removal from association and placement as required by Rule 46.
- Segregation interfered with Article 8 and was disproportionate, in part because it was used to compel him to undergo psychological assessments on terms he rejected.
- The procedural safeguards applicable to prisoners segregated under Rules 45 and 46 were discriminatory contrary to Article 14.
Respondent's Arguments
- Segregation under Rule 46 was lawful, subject to the Rule 46 process and medical considerations; continued segregation resulted from the Appellant's persistent non‑engagement with the multidisciplinary team and refusal of assessments.
- The CSCMC conducted monthly reviews which necessarily considered both placement within the CSC estate and, where relevant, removal from association; records, reports and CMPs provided meaningful reasons to the Appellant.
- The Appellant's refusal to submit to prison‑service psychological assessment prevented completion of risk assessment necessary for safe return to association; this justified continued segregation and did not render the interference disproportionate under Article 8.
- Rule 46 and Rule 45 create different frameworks and safeguards; the protections under Rule 46 are not inferior for Article 14 purposes.
- Any procedural irregularity conceded (committee composition on some occasions) did not render outcomes unsafe and declaratory relief was adequate redress.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Singh v SSHD [2018] EWCA Civ 2861 | Weight to be attached to uncontradicted witness evidence in judicial review. | Supported the proposition that the judge was bound to follow uncontradicted evidence of the Respondent's witness about CSC operation unless it could not be correct. |
| Ahmad v UK (2013) 56 EHRR 1 | Factors relevant to Article 3; bad faith in decision‑making renders a measure unlawful. | Used to note that bad faith would render segregation unlawful and to list relevant factors in Article 3 assessment. |
| R(AB) v SSJ [2021] 3 WLR 494 | Minimum level of severity for Article 3; factors for assessing segregation regimes. | Adopted for the principle that the minimum severity threshold depends on circumstances and that the judge must assess whether the threshold was met. |
| Ramirez Sanchez v France (2007) 45 EHRR 49 | Procedural fairness required in decisions to segregate; factors including premeditation and duration. | Relied upon to emphasise the procedural fairness component and the range of factors relevant to Article 3. |
| R (Bourgass) v SSJ [2015] UKSC 54; [2016] AC 384 | Common law duty to give prisoners meaningful reasons for segregation decisions. | Applied to assess whether the Appellant had been given "the substance" of reasons sufficient to respond; court found reasons and disclosure of reports, CMPs and minutes satisfied the requirement. |
| Floreat Investment Management Ltd v Churchill [2023] EWCA Civ 440 | Delay in judgment may require increased scrutiny of the reasoning. | Cited to justify careful scrutiny of the High Court judgment because of delay in handing down judgment. |
| Awale v SSJ [2024] EWHC 2322 | Interpretation that monthly reviews under Rule 46 require consideration of placement within the CSC and, if segregated, removal from association. | Accepted as reflecting the correct position on what Rule 46 monthly reviews must consider; used in assessing whether CSCMC addressed segregation separately. |
| Ocalan v Turkey (2005) 41 EHRR 45 | Standard of proof in Article 3 factual findings: beyond reasonable doubt for certain factual findings, with allowance for cogent inferences. | Discussed in relation to the proper articulation of the standard of proof for Article 3 factual questions; court rejected requiring the Appellant to prove legal characterisation beyond reasonable doubt. |
| R (Bary) v SSJ & The Governor of HMP Long Lartin [2010] EWHC 587 (Admin) | Statement that applicant must establish Article 3 breach and the standard of proof referred to in Ocalan. | Referenced when analysing how the standard of proof operates for Article 3 factual questions. |
| R(VC) v SSHD [2018] EWCA Civ 57; [2018] 1 WLR 4781 | Clarifies that "beyond reasonable doubt" applies to factual findings not to legal characterisation. | Relied on to explain that the standard applies to facts found, not to the legal question whether treatment meets Article 3. |
| Ireland v UK (1978) 2 EHRR 25 | Origins of the "minimum level of severity" test for Article 3. | Used to frame the threshold inquiry for Article 3 assessment. |
| Van der Ven v The Netherlands (2003) 38 EHRR 46 | Removal from association not in itself Article 3; assessment depends on conditions, stringency, duration and effects. | Applied to show removal from association alone is not determinative of Article 3 breach. |
| Ilascu v Moldova (2004) 40 EHRR 46 | Context for assessing severity and effects in Article 3 cases. | Referenced among Strasbourg authorities setting out factors for Article 3 assessments. |
| Shahid v Scottish Ministers [2015] UKSC 58; [2016] AC 429 | Domestic authority on prolonged segregation and the need for vigilant justification as duration increases. | Contrasted with the present facts to show differences (reasons for segregation and period) and to assess proportionality under Article 8 and Article 3 contexts. |
| R (Sneddon) v Secretary of State for Justice [2024] EWCA Civ 1258; [2025] KB 245 | Respect to expertise of decision‑makers in risk assessment of potentially violent prisoners. | Invoked to support deference to prison authorities' risk assessments in managing violent prisoners. |
| Abu v Secretary of State for Justice [2025] EWHC 3526 (Admin) | Example of Article 3 breach where failure to assess and treat severe mental health need over months led to inhuman and degrading treatment. | Considered but distinguished on the facts as involving significant mental health issues not present in the Appellant's case. |
| Vavricka v Czech Republic (2021) 51 BHRR 41 | Principle that subjecting someone to a detriment for refusing to engage in a medical process is an interference with Article 8 which may be proportionate. | Cited and held not to assist the Appellant's case that refusal to engage rendered segregation disproportionate. |
| R (Bourgass) v SSJ [2015] UKSC 51; [2016] AC 384 | Requirement for committee constitution and meaningful reasons (alternate citation appearing in judgment). | Referenced for the point that committee composition and meaningful reasons matter; accepted that some meetings used acting governors in breach, but this did not establish different outcomes. |
Court's Reasoning and Analysis
The court began with the common‑law procedural complaints (Grounds 4 and 5). It examined CSCMC minutes, monthly reports and CMP material and concluded there was sufficient evidence that the CSCMC considered both placement within the CSC estate and, where relevant, removal from association. The court held that the periodic reports, CMPs, weekly and monthly records and feedback provided the Appellant with the substance of reasons required by Bourgass and related authority. The court rejected the contention that reasons were so formulaic as to be inadequate, noting repeated references to the Appellant's non‑engagement and to options offered to facilitate engagement.
On Article 3 (Grounds 1–3 and 2 particularly), the court analysed the applicable law (minimum level of severity; factual standard of proof). It concluded the judge did not err in principle and that, on the facts, even applying civil standards the treatment did not reach the minimum level of severity required for an Article 3 breach. The court addressed the standard of proof nuance: factual findings may require a high standard but the legal characterisation is distinct; it rejected the Appellant's argument that the judge required proof to a criminal standard for the legal question.
On Article 8 (Grounds 6 and 7) the Respondent had conceded limited procedural irregularity (committee composition) but the Court proceeded to consider substantive proportionality itself. It accepted that prolonged segregation increases scrutiny required, but concluded the Appellant's persistent refusal to engage with prison psychologists (and to accept assessments except on his own terms) meant that safe return to association could not be made. The court afforded respect to the expertise and risk assessments of prison authorities and found the interference proportionate on the facts. The court rejected the submission that segregation was being used to compel assessments in a manner that made the interference disproportionate.
On Article 14 (Ground 8) the court accepted that Rules 45 and 46 are different frameworks with different safeguards and held that prisoners under Rule 46 are not in sufficiently similar positions to those under Rule 45 so as to establish unlawful discrimination; in any event the protections under Rule 46 were not inferior.
The court considered domestic authorities (including Shahid and Abu) and Strasbourg jurisprudence (including Ramirez Sanchez, Van der Ven, Ahmad) and distinguished the facts where appropriate. The court was satisfied there was ample evidential basis for the High Court's factual findings and for the conclusion that no Article 3 breach arose and that Article 8 interference was justified.
Holding and Implications
DISMISSED.
Holding: The Court of Appeal dismissed the Appellant's appeal and upheld the High Court's dismissal of the judicial review claim. The court found (i) no Article 3 breach on the facts; (ii) the CSCMC carried out requisite reviews and provided sufficient reasons in compliance with common law requirements; (iii) the Article 8 interference was, on the facts and given the Appellant's sustained non‑engagement, justified and proportionate; and (iv) no Article 14 discrimination was established.
Implications: The direct effect is that the Appellant's challenge to ongoing segregation was unsuccessful and his continued management under the CSC/DC regime was held lawful on the material facts. The court applied established Article 3/8 principles and did not purport to create novel precedent; it emphasised deference to prison authorities' risk assessments where supported by evidence and proper procedure.
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