Cellular confinement and segregation not in breach of European Convention rights

King & Ors, R (on the application of) v Secretary of State for Justice [2012] EWCA Civ 376 (27 March 2012) Summary

This case concerned three separate appeals challenging the legality of cellular confinement and segregation procedures, imposed on prisoners who were serving custodial sentences. The appellants argued that their confinement and segregation whilst in prison engaged article 6 of the European Convention on Human Rights. The appellants further argued that article 6 was invoked on the basis that their custodial confinement interfered with rights under articles 3 and 8 of the Convention and the common law right to procedural fairness. By a majority of 2-1, the England and Wales Court of Appeal held that the right to associate with other prisoners whilst serving a custodial sentence was not a “civil right” under article 6 of the Convention. Further, decisions to impose cellular confinement and segregation did not engage articles 3 or 8 of the Convention and did not breach any common law rights to procedural fairness. All appeals were dismissed.

Facts

Each appellant in this case was subject to a period of cellular confinement or segregation whilst in prison. Ben King was subjected to confinement for two days for failing to follow orders to leave a prison shower cubicle. Kamel Bourgass was confined for six months in total after being involved in significant bullying and intimidation of other prisoners. Tanvir Hussain seriously assaulted another prisoner in his prison cell and was placed in a segregation unit for approximately six months, with restricted telephone access. The main question before the Court was whether decisions to confine and segregate these prisoners conflicted with their civil rights under article 6 of the Convention.

Decision

Five issues were raised for determination by the Court:

• whether the right to associate with other prisoners was a civil right engaged by article 6 of the Convention;
• in the alternative, whether cellular confinement or segregation engaged article 6 by interfering with the appellants’ rights under articles 3 and 8 of the Convention;
• whether the availability of judicial review cured any deficiencies concerning the right to a fair trial under article 6 of the Convention;
• whether the appellants’ common law right to procedural fairness had been curtailed; and
• whether restricting access to a telephone in Hussain’s case was unlawful.

Right to associate with other prisoners – a civil right?

Article 6 of the Convention relevantly provides that “[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”. The appellants argued that the right to associate with other prisoners constituted a “civil right” that could only be curtailed by an independent and impartial tribunal. Cellular confinement and segregation were imposed in these cases by administrative decision-makers, being a prison governor and Segregation Review Board. As confinement and segregation were not imposed by an independent judicial body, the appellants argued that their rights under article 6 of the Convention were curtailed.

By a majority of 2-1, the Court of Appeal held that the right to associate with other prisoners was a “normal privilege” of a custodial sentence, but did not attain the status of a civil right. Factual considerations were of “fundamental importance” to the majority’s decision in this case. Maurice Kay LJ, with whom Lloyd LJ agreed, held that it would be unrealistic to require an initial decision to segregate to be taken by an “independent and impartial tribunal established by law”, when dealing with urgent disciplinary proceedings against individual prisoners. Elias LJ dissented on this point, holding that the right to associate with other prisoners should be treated as a civil right under the Convention.

Articles 3 and 8 of the Convention

In the alternative, the appellants submitted that confinement and segregation determined their civil rights under article 6, as these procedures interfered with other rights under articles 3 and 8 of the Convention. Article 3 concerns a prohibition on torture and degrading treatment. Article 8 provides a right to respect private and family life. The Court held that neither articles 3 nor 8 of the Convention were engaged on the facts of these appeals.

Judicial review

The Court considered an additional question of whether, if article 6 did apply, the absence of an independent and impartial tribunal in this decision-making process was cured by the availability of judicial review. Maurice Kay LJ held that the internal procedures surrounding custodial segregation decisions, combined with the availability of judicial review, satisfied the requirement of an independent and impartial tribunal under article 6. Elias LJ agreed on this point, noting that he would be “very reluctant” to require key areas of prison discipline to be subjected to external determination.

Common law procedural fairness and telephone access

The Court dismissed the appellants’ submission that they were not provided with adequate disclosure or reasons to challenge their segregation. Following Taylor LJ’s decision in R v Deputy Governor of Parkhurst Prison, ex parte Hague [1992] 1 AC 58, their Lordships held that there was no legal right afforded to every prisoner to receive reasons for their segregation.

Concerning the lack of telephone access argued by Hussain, the Court found that this submission was not established on the evidence presented.

Relevance to the Victorian Charter

This case may be of relevance to interpreting section 24 of the Victorian Charter. Section 24 provides a right in all criminal and civil proceedings to have a charge or proceeding decided by a “competent, independent and impartial court or tribunal”. The Court of Appeal’s decision in King & Ors indicates that an administrative decision to confine or segregate a prisoner will not breach that prisoner’s right to a fair trial, provided that the decision may be subject to judicial review.

The decision can be found online at: http://www.bailii.org/ew/cases/EWCA/Civ/2012/376.html

Clare McKay is a Law Graduate in the Human Rights Law Group at King & Wood Mallesons.