On 14 October 2015, the Supreme Court decided that the Scottish prison authorities had acted unlawfully in holding the appellant in solitary confinement, also known as segregation, for almost five years.
Rule 94 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006 gave the prison authorities the power to segregate. Rule 94(1) provided that the governor of a prison could order a prisoner’s segregation for various purposes, including the prisoner’s protection. Rule 94(5) provided that the prisoner “shall not be subject to such [segregation] 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”. Rule 94(6) provided that such authority “shall have effect for a period of one month commencing from the expiry of the period of 72 hours mentioned in paragraph (5) but the Scottish Ministers may, on any subsequent application of the governor, renew the authority for further periods of one month commencing from the expiry of the previous authority”.
In 2006, the appellant was convicted of murder and sentenced to life imprisonment. The prison authorities had intelligence that, because of his notoriety as the perpetrator of a particularly appalling crime, he was at risk of serious injury or worse from other prisoners. A Scottish Prison Service body that had no status under the rules, the Executive Committee for the Management of Difficult Prisoners (“ECMDP”) periodically considered his case and concluded that he should be segregated. Prison governors and the Scottish Ministers made various orders under rule 94(1), (5) and (6) to keep him segregated for his own protection, both while he was on remand before his trial and after his conviction. With the exception of the period immediately prior to and during his trial, when he was detained in mainstream conditions, he was segregated for a continuous period of around 56 months. During his segregation, he was confined to his cell for between 20 and 22 hours a day.
The appellant applied for judicial review of the segregation orders on the grounds that they were unlawful under section 6 of the Human Rights Act 1998 because they were incompatible with articles 3 and 8 ECHR and that some of them were not authorised by rule 94(5) and (6) because the Scottish Ministers made them after the expiry of the 72 hours or one month periods.
The application was heard in the Outer House of the Court of Session in 2011. By that time, the prison authorities had returned the appellant from segregation to mainstream conditions. The appellant asked the court to declare that the segregation orders were unlawful and to award him damages as just satisfaction under section 8 of the Human Rights Act 1998. On 18 November 2011, the court refused his application (2012 SLT 707). He appealed against that decision to the Inner House of the Court of Session. On 31 January 2014, the court refused his appeal (2014 SC 490). He appealed to the Supreme Court.
The Supreme Court allowed his appeal. It decided:
(1) That part of the appellant’s segregation was unlawful because the Scottish Ministers had failed to comply with the time limits in rule 94(5) and (6). The correct interpretation of those provisions was that neither a late authority under rule 94(5) nor its renewal under rule 94(6) could authorise segregation. The Scottish Ministers had granted three late authorities under rule 94(5), which they renewed several times under rule 94(6). The periods of segregation that resulted from those authorities and renewals, which totalled around 14 months, were therefore without authorisation under the rules.
(2) That the appellant’s segregation did not breach article 3. The court considered the conditions and circumstances of the segregation against the criteria in the case law of the European Court of Human rights and decided that the segregation did not attain the minimum level of severity required for a breach.
(3) That the appellant’s segregation breached article 8. It was an interference with the appellant’s right to respect for his private life for the purposes of article 8.1 that pursued the legitimate aim of protecting his safety. The interference was not justified under article 8.2, however, for two reasons. First, it was not in accordance with law. That was because some of the decisions of the prison governors to grant orders under rule 94(1) and to make applications under rule 95(5) and (6) were not taken in the exercise of their own independent judgment but proceeded on basis that they were expected to follow the conclusions of the ECMDP. Those decisions breached the rule of domestic administrative law that a statutory power of decision-making must be exercised in reality by the person on whom the power has been conferred. Part of the segregation was also not in accordance with law because it was not authorised by the late authorities under rule 94(5) and their renewals under rule 94(6). Secondly, although segregation carries well-known risks to a prisoner’s mental health, the prison authorities took no serious steps in the appellant’s case to find an alternative until four and a half years after it had begun. In those circumstances, the segregation was not proportionate to the aim that it pursued.
(4) Not to award damages. The appellant would have been segregated even if the late authorisation and their renewals had not been made late and the prison governors had exercised independent judgment rather than following the conclusions of the ECMDP. The appellant’s segregation did not cause harm to his health or completely isolate him from others. Had he not been segregated, the other prisoners would not have associated with him. In those circumstances, an award of damages was not necessary to afford him just satisfaction for the purposes of section 8 of the Human Rights Act 1998. The combination of declarators that the appellant requested and an award of the expenses of the proceedings would provide just satisfaction.