Several recent cases have considered the legality of segregating prisoners and the safeguards to be implemented to ensure that segregated prisoners’ rights are adequately protected and that the lawfulness of their segregation is properly reviewed. The challenges to the legality of the disciplinary or review procedures have served to clarify the application of article 6 of the European Convention on Human Rights to disputes over civil rights and the minimum steps to be taken to safeguard the residual rights of segregated prisoners.

Prisoners can be removed from association for the ‘maintenance of good order or discipline’ or ‘in their own interests’. The correct procedures following a prisoner’s segregation are set out in PSO 1700. Prisoners can also be awarded loss of association as punishment at disciplinary proceedings. In R (King) v SSJ [2010] EWHC 2522 (Admin), the claimant established that prisoners have a right to associate with others.

The concept of a ‘right of association’ derives from a series of cases in the European Court of Human Rights, which recognise as personal rights or civil rights those residual rights prisoners enjoy by virtue of the 'normal' prison regime. It accords with the long-established domestic law principle that prisoners retain rights other than those expressly removed by law and with the notion that those rights may be enhanced by the loss or partial loss of other rights.

The criminal limb of article 6 of the ECHR applies to proceedings before independent adjudicators who have the right to add additional days to the sentence, but not to proceedings before governors where the most serious punishment is the loss of association.

In order for the civil limb of article 6 to apply to disciplinary proceedings, it is necessary to demonstrate that there is a genuine and serious dispute over the scope and exercise of the civil right and that the disciplinary proceedings impact directly on the substantive content and exercise of that right. Once these characteristics are established the person whose civil right is at stake is guaranteed the right to a fair and public hearing by an independent and impartial tribunal.

In King, in addition to the argument that association is a civil right, it was argued that the disciplinary process involved a determination of article 3 and article 8. Significantly, the secretary of state accepted the existence of a civil right not to be treated in breach of article 3 and article 8.

However, the court held that the possibility of the punishment of loss of association was not grave enough to amount to a violation of his article 3 or article 8 rights.

In assessing the procedural requirements of article 6, the court looked at the totality of the remedies available and held that the availability of judicial review was capable of curing the lack of independence and impartiality in the prison disciplinary process.

However, the recognition of the existence of a prisoner’s ‘right of association’ has other implications for segregated prisoners, as demonstrated in R (Bourgass and Hussain) v SSJ [2011] WL 441878. Two prisoners sought to argue that they should be entitled to independent reviews of the continuing lawfulness of their segregation and that there should be full disclosure of the reasons for their segregation at such reviews. They argued that the current procedures, where governors chair segregation review boards and where gists of security information are provided to review board members, are inadequate to comply with the requirements of article 6.

The court rejected this argument in part again due to the availability of the remedy of judicial review to challenge the lawfulness of a segregation decision, but also because of the evidence of the secretary of state on the safeguards adopted to address concerns about the unfairness of the segregation process.

These included the giving of reasons to prisoners, the right to attend reviews boards and the requirement for different governors to review the need for ongoing segregation. The court also did not consider that there was a suitable method of introducing an independent review process, bearing in mind the expert knowledge of prison security needed to make the decision.

The importance of the protecting the residual rights of segregated prisoners was further highlighted in the case of Malcolm v the Ministry of Justice [2010] EWHC. This time the challenge was to the conditions of segregation. The prisoner sought damages for misfeasance in public office and for a breach of his rights under article 8 due to his lack of time in the open air in breach of prison service policy which requires segregated prisoners to be given the opportunity to spend a minimum of one hour in the open air each day.

The claim for misfeasance in public office failed; fatally an abuse by a public officer of the powers invested in him was not established. It was argued that the failure of staff to ensure access to time in the open air was unlawful as it was in breach of a legitimate expectation that the prison service policy would be complied with and in violation of that policy.

The court rejected these arguments on the basis that the proper remedy for any alleged breach of legitimate expectation lay in a public law challenge against the governor or secretary of state for their failure to implement the policy. Furthermore, it was noted that because the policy is not legally binding it was unarguable that the failure to comply with it gave rise to personal, primary tort liability on the part of public servants.

In addition, the court accepted that misfeasance claims arising from prison conditions should be reserved for ‘the most extreme cases of bad faith and abuse of power’ and should be confined to ‘exceptional cases of blatant wrongdoing’.

There was no evidence in this case that the officers had acted in bad faith and the court referred to the principle that ‘honest incompetence cannot be equated with reckless indifference’. Moreover, the claimant failed to establish that he had suffered any detriment to his health or wellbeing.

Most importantly, however, the court considered, had misfeasance been established, the claimant would have been entitled to damages for his loss of residual liberty. This was in recognition of the importance of time in the fresh air to segregated prisoners, and the period of time over this loss was said to have occurred. In respect of basic damages the court suggested an hourly rate of £10-£15 but declined to make hypothetic findings on aggravated and exemplary damages.

Similarly, the article 8 argument was rejected due to the lack of evidence that he had suffered any real detriment and his failure to accept a transfer to another prison with a less restrictive regime.

Furthermore, the court held that any violation of article 8 would have been justified and proportionate in accordance with the legitimate aims of article 8(2), and that just satisfaction had been achieved through the Prisons and Probation Ombudman’s findings that the prison had failed to comply with the policy.

These cases provide a useful overview of principles applicable in areas beyond prison law. Thus, the features identified in relation to article 6 compliant disciplinary procedures apply to other tribunals where civil rights are in dispute and the recognition of the ‘right of association’ will be of benefit for those detained under immigration powers, whilst the case of Malcolm provides a useful overview of the tort of misfeasance in public office.

Above all, they demonstrate that challenges by prisoners continue to play an important role in developing domestic jurisprudence on rights based issues.

Nancy Collins is a solicitor at Bhatt Murphy having previously been at the Prisoners Advice Service as the supervising solicitor and at Liberty. Nancy co-authors regular legal updates on prison law for Legal Action Magazine. Bhatt Murphy represents Mr Malcolm.