Conlon, Re Application for Judicial Review [2001] NIQB 18 (04 May 2001)
Neutral Citation no. [2001] NIQB 18
Ref:
KERC3420
Judgment: approved by the Court for handing down
Delivered:
04.05.2001
(subject to editorial corrections)
Introduction
This is an application by Charles Conlon, a sentenced prisoner, for judicial review of decisions of the Governor of Her Majesty’s Prison, Maghaberry and of the Board of Visitors to the prison, whereby he was ordered to be detained in the Punishment and Segregation Unit of the prison under Rule 32 of the Prison and Young Offenders Centres Rules (Northern Ireland) 1995.
The applicant also challenges a number of individual decisions by the prison authorities. In particular, he claims that they failed to conduct a proper investigation of his allegations that he had been victimised and discriminated against on the ground of race; he also claims that his being subjected to what is described as “an individualised regime” is unlawful as is the fact that he is kept under observation while showering. Further he seeks declarations that he is entitled to medical, dental and optometric care. He claims that his television set was unlawfully removed from his cell and that the imposition on him of a “basic regime” is unlawful. Finally, he asserts that the conditions in which he is detained are in breach of Article 3 of the European Convention on Human Rights.
Background to the applicant’s restriction of association
The applicant was sentenced on 14 October 1999 to a period of two and a half years imprisonment on a total of five offences. Before sentence, he had been a remand prisoner at HMP Maghaberry. Since 21 November 1999 he has been located in the Punishment and Segregation Unit as a result of a series of decisions taken under Rule 32. These consist of decisions of a governor restricting the applicant’s association and decisions by members of the Board of Visitors extending the periods of his restriction. On 16 January 2000, he was sentenced to a further period of six months imprisonment for offences committed while in PSU.
According to Governor Mogg, the governor in charge of Maghaberry prison, the initial decision on 21 November 1999 to restrict the applicant’s association was taken as a result of a spate of bad behaviour on his part that led to his being charged with ten offences against prison discipline between 28 October and 21 November 1999. He was found guilty of threatening staff and their families.
Governor Mogg has suggested that prison staff regard the applicant as having a threatening attitude towards them. It was accordingly considered necessary, the governor said, to restrict the applicant’s association in order to maintain good order and discipline within the prison. It was further considered that the applicant was a disruptive influence within the ordinary prison regime because of his attitude and behaviour and that this was undermining discipline and control by officers.
On 22 November 1999 two members of the Board of Visitors signed an authority to restrict the applicant’s association for a period of twenty days with effect from that date. Following this, he was lodged in the PSU and while there his behaviour has been monitored on a daily basis. The monitoring process is used to obtain information on which to base future decisions in respect of the management of the prisoner and in particular to decide whether there is a continuing need to restrict his association. According to Governor Mogg, the need for such a restriction is kept under constant review. Where it is appropriate to do so, a prisoner is reintegrated into the normal prison regime as soon as possible. In the case of the applicant, this has not been feasible because his behaviour has continued to give rise to serious concern.
A new system of recording the results of the monitoring exercise was introduced in April 2000, following a review of the system of operation of the PSU. Copies of the monitoring records generated by the new system were produced in evidence and it was claimed that these demonstrated that the applicant was a dangerous and unpredictable prisoner. From the time that he was sentenced, Mr Conlon has been charged on 65 occasions with offences against prison discipline and has been adjudged guilty on 63 of these. Forty-six of these charges have related to behaviour in the PSU. In addition to the restriction on association resulting from his Rule 32 status, the applicant has lost a considerable number of other privileges following these adjudications.
In February 2000 Governor Mogg carried out a full review of all prisoners at HMP Maghaberry who were subject to Rule 32 restrictions. Mr Conlon is the only prisoner in HMP Maghaberry who has continued to be so restricted for reasons of good order and discipline for the whole of the period that the governor has been in charge of the prison. After considering his case, Mr Mogg concluded that because of the applicant’s continuing bad behaviour he would seek authorisation from the Board of Visitors to have him remain subject to Rule 32 restriction. This was granted.
Since then, on each occasion that the applicant’s period of restriction has been due to expire, it has been considered afresh by a governor. If he decides to apply for an extension of the applicant’s restriction of association, the Board of Visitors is contacted with a view to giving authority for a further period of up to 28 days in accordance with the Rule. The members of the Board of Visitors are fully briefed about the circumstances of the prisoner and are offered the opportunity to review the records of his behaviour and to see and speak to him.
Authorisation of restriction of the applicant’s association by the Board of Visitors
The applicant’s version
The applicant claims that he has not been given reasons for his detention in PSU since November 1999 apart from a written notification on 30 June 2000 from the Board of Visitors. This specified erratic behaviour and threatening of staff as the reasons for the governor’s restriction of the applicant’s association and the board’s decision to sanction that restriction from association for a period of 28 days. In three affidavits filed by him he makes no other reference to any contact between him and the Board of Visitors.
The Board of Visitors account
Sophy Bryson is a member of the Board of Visitors at Maghaberry. In an affidavit filed in these proceedings on behalf of the respondent, Ms Bryson described how she regularly attended the meetings of the Board of Visitors at Maghaberry on the second Thursday of every month. As a result of those meetings she claimed to be well aware of the applicant’s case, as it had been discussed at length at every meeting since his removal from association.
On 22 November 1999 Ms Bryson and another board member, Lillian Jennett, had a discussion with senior staff in the Punishment and Segregation Unit. The prison staff informed them that the applicant had been removed from association because he had assaulted a prison officer on Sunday 21 November 1999 and that prison management requested authorisation to restrict the applicant’s association for a further period. Ms Bryson and Ms Jennett asked staff if they would inquire of the applicant if he would speak to them. They were informed that he did not wish to speak to them. The two board members concluded that, because of the recent assault on staff, the restriction on the applicant’s association was justified for a period of up to 30 days.
On 15 February 2000 Ms Bryson attended the prison with another visitor, Clare McCarty, to consider the applicant’s continued detention in PSU. They had a discussion with a member of staff who brought them up to date on the applicant’s behaviour and the views of prison management. Again the applicant refused to see them. After deliberating on the case, the two board members authorised the continued restriction of the applicant’s association for a period of 28 days.
On 28 July 2000 Ms Bryson again attended the prison, on this occasion with board member, Deirdre Brown. Again they discussed the applicant’s case with staff on the Punishment and Segregation Unit and examined his behaviour records for the period from April 2000 onwards. They were informed that prison management had requested authorisation to further restrict the applicant’s removal from association. On this occasion the applicant agreed to speak to the members of the Board of Visitors in the interview room in the Punishment and Segregation Unit. He expressed boredom and frustration with his current situation. The board members agreed that if he had something to occupy his mind that this might help him to progress from his current situation. Ms Bryson later contacted the education department on his behalf and “vigorously pursued his cause over the ensuing weeks until a course was put in place”. She and her fellow board member nevertheless decided that the applicant should continue to have his association restricted for a period of up to 28 days.
Vilma Patterson is the chairman of the Board of Visitors in Maghaberry Prison. In her affidavit she described the nature of the monthly meetings of the board. The governing governor or his deputy attends each meeting. At every meeting a discussion takes place about prisoners who are subject to Rule 32 restriction. Mrs Patterson has been present at every meeting of the Board of Visitors since the Applicant was first placed on Rule 32 in November 1999. His case has been discussed in detail at every meeting. It is against this background that Mrs Patterson has taken decisions authorising restrictions of the applicant’s association.
On 21 December 1999 both Mrs Patterson and another board member, Justin Gorman, attended the prison to consider the continuing detention of the applicant under Rule 32. They obtained information about the circumstances in which the applicant had had his association restricted and then discussed the case with Governor Cromie. The governor informed them that the applicant had been removed from association because of an assault on a member of staff on 21 November 1999 and because of his continued threatening attitude to staff. Governor Cromie requested authorisation to restrict the applicant’s association for a further period. Mrs Patterson and Mr Gorman attempted to speak to the applicant in his cell in order to hear his side of the story. He refused to see them. They authorised restriction of the applicant’s association for a period of up to 30 days.
On 16 March 2000, Mrs Patterson again attended the prison. On this occasion board member Deirdre Brown accompanied her. They both spoke to staff in the Punishment and Segregation Unit. They were told that the applicant’s behaviour had not improved. He continued to have a threatening attitude towards staff and had assaulted a member of staff in January. The board members attempted to speak to the applicant in his cell but he refused to speak to them. They therefore authorised removal from association for a period of up to 28 days.
On 9 May 2000 Mrs Patterson again attended the prison with board member Elspeth Cummings. They received information from prison staff and read the applicant’s behaviour reports which had come into existence the previous month. The applicant refused to see them. They authorised restriction of association for a further period of up to 28 days.
On 30 June 2000, Mrs Patterson again attended the prison, on this occasion with fellow board member, Ruth Hewitt. They spoke to PO Davy Brown and examined the up-to-date behaviour reports. PO Brown informed them that the applicant was still not conforming to a degree that he could be moved back to a normal prison environment. He informed Mrs Patterson and Mrs Hewitt that the prison authorities had recently tried to move the applicant to an upstairs cell in the Unit but the move had lasted no more than a few minutes when the applicant reacted unfavourably to the instruction given as to the regime on the upper floor. He was immediately transferred back downstairs. It was the view of the prison authorities that if the applicant would not listen to them telling him what to do in the Unit then he could not expect to be moved back into the general prison environment. The two board members then spoke to the applicant. They told him that they wished to discuss with him how best to facilitate his removal from the Punishment and Segregation Unit. He informed them that he already had his way out and showed them his judicial review papers. He accused them of having already made up their minds in relation to the renewal of his restriction of association before seeing him. Despite their attempts to assure him that this was not the case and that they genuinely cared about his well being he terminated the interview immediately. They authorised a continuing restriction of his association for a period of up to 28 days.
Mrs Patterson conducted a further review of the restriction on the applicant’s association on 23 August 2000. Graham Martin, a fellow board member, accompanied her. They spoke to a member of staff who informed them that the applicant continued to behave in a threatening manner and had hit a member of staff in the previous few weeks. Because of the applicant’s behaviour he had been subject to close supervision of his movements. As a result of this imposition of the Rule 32 regime the applicant had refused food for some twelve days. Mrs Patterson and Mr Martin attempted to speak to the applicant. Staff informed him that they were present but he made no response. The two board members then spoke to the applicant through the Perspex grille of his cell. Again, he did not reply. Mrs Patterson and Mr Martin authorised his detention in PSU for a period of up to 28 days. Later that day Mrs Patterson spoke to Governor Maguire about her concerns in relation to the applicant’s refusal of food.
On 16 October 2000, Mrs Patterson and her fellow board member, John Millar, attended the prison to consider the applicant’s continued restriction of association. They spoke to a member of staff who informed them that the applicant continued to be threatening to staff and that it was the view of the prison authorities that the applicant’s restriction from association should continue for a further period.
Mrs Patterson and Mr Martin also spoke to the applicant for a long period. They discussed his continuing detention and stressed that they wished to see him back in a normal location. They told him that staff would have to have confidence in him in order to have him transferred back to a normal regime. They emphasised that it was clearly best for him to return to a normal environment. The applicant agreed. He mentioned his current judicial review and expressed the hope that this would resolve his situation.
Both board members were encouraged by the applicant’s commitment to the education programme that he was undertaking but they decided to authorise removal from association for a further period of up to 28 days.
Clare McCarty is also a member of the Board of Visitors at Maghaberry Prison. She has been present at meetings where the applicant’s case has been discussed and she claims that she was familiar with his circumstances when reviewing the restriction of the applicant’s association.
On 12 April 2000 she and board member, William Ward, attended the prison to consider the applicant’s continued removal from association. They spoke to staff in the Punishment and Segregation Unit of the Prison. They were informed that his behaviour had not improved, that he continued to threaten staff and that prison management requested authorisation for his continued restriction of association. While speaking to staff, they could hear the applicant in an agitated condition and staff were extremely concerned about him. A nurse had been called. They went to the applicant’s cell door but it was clear he did not wish to see them. They authorised a continuation of his restriction of association.
Ms McCarty and other board members conducted similar reviews on 4 June 2000 (with Ms Jennett) and 19 September 2000 (with Ms Doherty) with similar information being relayed by prison staff, the applicant refusing to discuss his case with the members of the Board and a similar outcome on each occasion. On the latter date, notwithstanding his refusal to meet them, Ms McCarty and Ms Hughes decided to go to see the applicant anyway. He said that they were merely a rubber stamp for the governor. The board members found him to be quiet and measured but they were unable to engage him in discussion about his views. They asked him about education and he confirmed that he had education materials. They reviewed all the reports from early July to date on the applicant and noted that his behaviour had changed to an extent and that he had been upgraded in cell accommodation. They concluded, however, that small issues seemed to trigger a reaction in him and that his behaviour was not stable enough to allow him to return to normal association.
Ruth Hewitt, another member of the Board of Visitors, made similar averments in relation to a visit to the prison on 19 January 2000. Mrs Hewitt attended with another board member, Deirdre Brown, to consider the applicant’s continued restriction of association. She discussed the applicant’s case with senior staff in the Punishment and Segregation Unit. They informed her that on 3 January 2000 the applicant had attacked two members of staff using a weapon taken from a piece of furniture in his cell. She was informed that the applicant’s behaviour continued to be threatening towards staff. The applicant refused to see the board members. They authorised his continued restriction from association.
Background to the applicant’s other complaints
The applicant’s version
The applicant claims that on occasion he has had to “slop out” under the door of his cell and his food is pushed in through the door. The only furniture in his cell is, he claims, a bed which is a raised slab of concrete. He has no access to books or other reading materials. He is, he claims, subject to a constant stream of abuse and taunts from prison officers. This abuse has led to many of the offences against prison discipline with which he has been charged. He also complained about the conditions in which he received legal visits. According to the applicant, these took place in a portacabin and were observed by prison officers through a two-way glass. Because the glass was single glazed, the applicant believed that prison officers could hear what was being said during legal visits. (These conditions have now changed.)
The applicant also alleges that he is held on 23-hour lock-up in a cell whose dimensions are 10 feet by 6 feet. He is allowed one hour each morning to wash, exercise and clean his cell. A “Control and Restraint” team escorts him every time he leaves his cell. He had been on hunger strike from 11 August until 24 August 2000 as a protest at his conditions. At the end of this protest, according to the applicant, he was told that there would be an improvement in his conditions but, apart from a relaxation in the use of the Control and Restraint team, no improvement has materialised.
The applicant claims that he has no access to radio, the gymnasium or tuck shop. On 20 November 2000, his television set was removed while he was on a legal visit. He receives his food in cartons and claims that, while it is enough to sustain life, the portions are meagre. He is provided with a gallon of water in the morning but receives no hot drink throughout the day. He has no access to tobacco and claims to be addicted to nicotine so that he has suffered withdrawal symptoms.
The applicant also complains that when a doctor examines him, prison staff remain at the door of the room in which the examination takes place so that he cannot discuss medical problems in private. He has asked to see an optician and a dentist. These requests have been ignored.
A recurring theme of the applicant’s complaints is that he has been verbally abused by prison staff. Often, according to him, this takes the form of racial abuse. He has made complaints but these have been dismissed “out of hand”. He also complains of having been regularly assaulted by prison officers.
The prison authorities’ response
Governor Mogg explained that as a result of the applicant’s behaviour and his location in PSU he was entitled only to the privileges of a prisoner on the basic regime within the prison. The basic regime is the lowest level of privileges awarded to prisoners as part of a system of progressive regimes introduced in the prison on 20 November 2000. The introduction of the system was designed to reward good behaviour and to create a disincentive to poor behaviour on the part of prisoners. The process is based on weekly written assessment reports of behaviour. Depending on those reports a prisoner may move up or down the levels or continue as before. According to Mr Mogg, the applicant’s weekly reports clearly placed him on the Basic regime level. There are two other levels of regime, standard and enhanced. These are awarded to prisoners who have received satisfactory reports for behaviour, work, co-operation with programmes designed to tackle offending behaviour and participation in other constructive activities.
The basic regime allows three privilege visits plus one statutory visit every twenty-eight days. The prisoner is allowed to have a radio cassette, or hi-fi player. He may spend £20.00 each week in the prison shop and may use a maximum of five phone cards each week. He may engage in cell crafts and hobbies. He is allowed a maximum of 62.5 grams of tobacco or 60 cigarettes each week. In addition, Mr Conlon is entitled to a daily newspaper, access to the prison library and its education facilities. These privileges may be withdrawn in circumstances where a prisoner is found guilty of an offence against prison discipline at an adjudication.
In the applicant’s case awards imposed after findings of guilt on a number of adjudications have resulted in the loss of a number of privileges for various periods. Privileges lost include use of the prison shop, of the telephone, of a personal radio and of earnings.
According to Mr Mogg, the dimensions of the applicant’s cell are 12 feet by 7 feet. Currently he occupies a cell that overlooks the exercise yard. The window is approximately 4 feet by 3 feet and lets in natural light. As with all the cells in the PSU which overlook the exercise yard, opaque glass is fitted to the windows for security reasons and for the protection of prisoners who are in the exercise yard.
Each day Mr Conlon is offered a one-hour exercise period. Apart from that period, he has the opportunity to use the shower and to mop out and clean his cell. Mr Mogg also explained that PSU is a self-contained unit but the applicant has access to both his domestic and legal/professional visits in an area adjacent to the unit. Mr Mogg confirmed that the applicant otherwise leaves the unit only to attend court.
Dealing with Mr Conlon’s claims in relation to the Control and Restraint team, Mr Mogg stated that during August 2000 the applicant violently attacked a prison officer. As a result the officer concerned received bites to two areas of his body. Thereafter members of the standby search team closely escorted the applicant every time he left his cell. This action was considered necessary to avoid the risk of further staff injuries.
Mr Mogg averred that the restriction on the applicant imposed under Rule 32 related only to his association with others. Any loss of television, radio, tuck shop, parcels, reduction of privilege visits, access to gym, was as a result of awards arising from Governor adjudications or being on the basic regime. It was not as a consequence of his Rule 32 status. Similarly, loss of books or newspapers was due only to awards of cellular confinement that had been made as a result of the adjudication process. Where such awards have been spent, the affected privileges have been restored to the applicant.
He has had access to education facilities and to the prison library and has been pursuing two courses, one in mathematics and one in philosophy.
Mr Mogg explained the absence of a television from the applicant’s cell. This was because he is now on basic regime. It is unrelated to his Rule 32 status. The television was removed when the applicant was at a legal visit to avoid confrontation. When he discovered that the television had been removed and was informed of the reason for its removal, according to the governor, he attacked and injured two members of staff. A senior officer sustained broken ribs and another officer was bitten on the face. It was accepted that during this incident some damage might have been accidentally caused to some of Mr Conlon’s belongings. He was relocated after this incident to another cell by the use of control and restraint techniques. The incident was referred to the police for investigation.
Mr Mogg claimed that as a result of this event the applicant is held in a special cell at the end of the wing which has double doors and limited furnishings. He has a bed, mattress, pillow and a full set of bedding that is changed regularly. There is a toilet in the cell. He can ask for reading material from the library and daily papers are available on the wing.
On the topic of his food, the governor stated that the applicant receives the same meals as other prisoners. The food is wholesome. It is served in polystyrene cartons for safety reasons. All prisoners in the prison are served food by staff. The applicant has access to fresh water every day. Any restriction on tobacco was a direct consequence of loss of tuck shop privileges and or cellular confinement arising from an adjudication award.
On the subject of medical visits Mr Mogg said that the applicant could ask to see the doctor at any time and if such a request was made a visit to the doctor was organise. Staff do not intrude on any medical consultation but are nearby outside the cell in case of emergencies. According to the doctor’s wishes, he may see the applicant in his cell with the door closed over but not locked. On these occasions staff will observe proceedings through the door observation slot. Alternatively the doctor may stand at the door of the cell and conduct his consultation from there. None of the doctors had made any complaint to prison management with regard to this arrangement. There is no record of the applicant complaining about the arrangement.
Any request to see the dentist or optician is initially taken by wing staff according to Dr Mogg, and then is passed on to the hospital for action. There is no record of the applicant having made a request to see an optician but since the applicant raised this allegation in these proceedings, Mr Mogg has had the matter checked and, on learning that he still wished to see an optician, arrangements for this were made. Two requests to see a dentist are recorded dated 3 November 2000 and 14 November 2000. At that time only emergency dental treatment was available in the prison as the dental surgery within the prison was being refurbished. On 8 February 2001 Mr Mogg confirmed with the staff of PSU that the applicant still wished to see a dentist and this request has been relayed again to the hospital for action as soon as possible.
On occasions when the applicant has become refractory and violent he has had to be restrained by prison staff using approved control and restraint techniques, according to Mr Mogg. Mr Conlon has not been subject to either physical or psychological abuse, Mr Mogg says. In particular, he referred to allegations made by the applicant in relation to two incidents in August 2000 when (the applicant claims) he received injuries at the hands of the Control and Restraint teams. Mr Mogg asserted that these incidents involved the applicant spitting and assaulting prison officers and that there was no evidence to support the allegation that any restraint used in response to these incidents was other than the use of reasonable force in the circumstances. Nor was there evidence to suggest that any of the full body searches of the applicant was conducted other than in a professional manner and in line with current instructions for such searches.
Mr Mogg suggested that the applicant’s assertion that he is constantly subjected to racial abuse was without foundation. His record shows that on two occasions he has made complaints (in July 1999 and October 1999) and on both occasions the allegations were enquired into but found to have no substance. It is not the case (Mr Mogg said) that these complaints were dismissed out of hand.
As regards the allegation that prison staff observed the applicant while showering, Mr Mogg explained that he is under direct observation when in the ablutions area in which the shower cubicle is contained. Once inside the shower cubicle he can only be seen in silhouette through an opaque observation panel.
Mr Mogg stated that the applicant remained on Rule 32 restriction of association the Applicant remains subject to Rule 32 because of propensity to assault and to cause serious injury to staff and his “continued blatant anti-authority stance which manifests itself in a series of breaches of discipline including verbal abuse of staff”.
The applicant’s case
On behalf of the applicant, Mr Treacy QC emphasised that his application was not confined to an attack on the validity of his Rule 32 status. He had a number of discrete complaints about the conditions in which he was held and the facilities that were denied him. He also challenged the failure of the prison authorities to properly investigate the complaints that he had made about victimisation and racial abuse.
It was accepted that the applicant’s complaints in relation to legal visits had now been overtaken by the instruction given to prison staff that they should supervise visits through a television monitor so that no question of their being able to overhear would arise. Mr Treacy argued, however, that the applicant was entitled to declaratory relief in respect of this matter.
In relation to the suggestion that the prison authorities had failed to investigate Mr Conlon’s complaints of racial harassment and victimisation, Mr Treacy referred to a transcript of an interview of the applicant conducted by Governor Cromie on 21 July 1999. Mr Treacy claimed that Mr Conlon had presented his case in a very effective manner but that the governor had dealt with this in a perfunctory way and tried to undermine the applicant. He failed to address the applicant’s complaint that he was being less favourably treated. No effective investigation into his complaint had been conducted. Similarly, on 22 October 1999, when Mr Conlon made a complaint of institutional racism the prison authorities failed to address the issues raised by the applicant, Mr Treacy claimed. A memorandum prepared by Governor Edgar set out the applicant’s previous convictions but said nothing about the complaint that he had made, it was suggested. Mr Conlon had said that he would detail his complaints to an independent investigator but this offer was never followed up. The failure to investigate the applicant’s complaint constituted a breach of Article 3 of the European Convention, Mr Treacy argued.
In relation to the conditions under which Mr Conlon is currently detained, Mr Treacy pointed out that the provisions of the Prison and Young Offenders Rules (Northern Ireland) 1995 authorised a governor to impose cellular confinement for a maximum of three days. Even a Board of Visitors could only impose a maximum of fifty-six days. It was argued that the applicant is being held in conditions which amount to solitary confinement. It was well recognised, Mr Treacy submitted, that solitary confinement can have a deleterious effect on the health of those who are subject to it. In the present case, Mr Conlon had claimed in his first affidavit that he was suffering “significant mental anguish and frustration” at the conditions in which he was held. Neither this nor an averment to like effect in the applicant’s second affidavit had been challenged. The conditions in which the applicant was held constituted a breach of Article 3 of the European Convention on Human Rights.
In this context, Mr Treacy drew attention to what he claimed was the well recognised phenomenon that prisoners on the whole distrust Boards of Visitors. What might be perceived as the applicant’s failure to co-operate with the Board of Visitors should not be taken as a factor adverse to him, therefore.
It was submitted that Rule 32 was not validly imposed in the first instance and that the subsequent authorisations of its extension were equally invalid because the applicant had not been given information as to the reasons that he was removed from association or as to why that removal had been continued. None of the reports on which the Board of Visitors had relied had been disclosed to him. The first time that any reasons had been proffered by the Board of Visitors for their decisions had been 30 June 2000.
The case for the respondent
For the respondent, Mr Maguire stated that the Prison Service regarded Mr Conlon as an extremely disruptive and violent prisoner. He had been adjudicated guilty of many offences against discipline and had persistently refused to obey instructions. This level of disruption, if it were observed and emulated by other prisoners, could lead to a substantial breakdown in discipline and good order throughout the prison generally. Moreover, an intractable prisoner such as Mr Conlon presented the prison authorities with a dilemma. He did not mend his ways as a result of the awards imposed on him. Doing nothing about this situation was not an option. The prison authorities were obliged to remove him from association (and to seek the Board of Visitors’ authorisation to keep him from associating with other prisoners) where they considered that he would be a disruptive influence. If one did not act promptly and firmly to remove such an influence from the general prison population, prison officers would quickly lose control of a penal institution when it became clear that prisoners were able to disobey orders with impunity.
The Board of Visitors was independent of prison management, Mr Maguire pointed out. Yet every member of the board who had reviewed the applicant’s case had recommended that he be kept from association with other prisoners. So had every prison officer who had made a weekly recommendation in relation to him. This was unsurprising in view of his record. He had been adjudicated guilty of sixty-three offences against prison discipline. Some of these offences were extremely serious. He had been found guilty of attacking two members of staff with an item of furniture; of biting an officer on the face and breaking another’s ribs; of assaulting other prisoners and of causing damage to prison property.
It was submitted that there was no procedural requirement to provide the applicant with reasons for his removal from association although, as a matter of practice, these are supplied through the medium of interviews either with the governor or the board of visitors. The applicant has refused the opportunity to be interviewed on a number of occasions, Mr Maguire said, and in so far as he is unaware of the reasons for his removal from association, this was a situation of his own making and one which he could readily remedy by agreeing to be interviewed. Moreover, the affidavits filed on behalf of the respondent now provide all the reasons for the removal from association and this, Mr Maguire claimed, cured any earlier omission.
Mr Maguire disputed the claim that the conditions in which the applicant is held violate Article 3 of the Convention. Many of the facilities that have been withdrawn from the applicant have been lost as a result of his being adjudicated for disciplinary offences.
On the subject of the investigation of Mr Conlon’s complaints, Mr Maguire pointed out that the interviews by the prison governors of the applicant in relation to these complaints pre-dated the incorporation of the Convention into domestic law; there was no question of a breach of Article 3, therefore. In any event, he claimed, there had been an adequate examination of both complaints and the applicant was given the opportunity to bring forward any further matter that required investigation but did not do so.
The restriction on the applicant’s association
(i) The reasons for removal
In Williams v Home Office [1981] 1 All ER 1211, 1247f Tudor Evans J said: –
“It seems to me that Parliament, as reflected in the Prison Act and the Prison Rules, drew a clear distinction between Rule 43 [the English equivalent of Rule 32] cases and cases of offences against discipline. In the former case the prisoner has no voice in the decision which is to be taken. When a man is transferred to a segregation unit he is not able to make any representation. In paragraph 166 of the Radzinowicz Report it is said that before transferring a prisoner to a segregation unit it is not necessary for them to have been guilty of an offence, and it therefore follows that there is no right to be heard or make any representation against the decision.”
Carswell J agreed with this view in Re Maguire’s application (1993 unreported). I had occasion to consider both judgments in the case of Re Taggart(1997 unreported). I said there (at page 11): –
“For my part I would not be prepared to hold that a governor would never be required to inform an inmate that he was to be made the subject of Rule 32. It appears to me that each case requires to be considered on an individual basis. As Carswell J acknowledged inMaguire, in some cases there may be no good reason why the grounds for removal from association should not be discussed openly with a prisoner.”
Both Maguire and Taggart involved a claim that the applicant should have been informed before he was removed from association. In the present case, the applicant claims that he was not informed of the reason for his segregation until June 2000. He claims that the respondent has been at fault, not only because he was not informed of the reasons for his segregation initially, and has not been informed of the reasons that he remains removed from association.
I consider that a prisoner who has been removed from association is entitled to be informed of the reasons that this action has been taken, unless it is so obvious why this has happened that the information is superfluous. Of course, it will not be necessary in every case that the prisoner be informed before he is removed. Frequently, that will not be feasible. But it now appears to me that fairness requires that a prisoner who loses the opportunity to associate with other prisoners must normally be informed of the reason for that, in the same way that those whose categorisation is changed are entitled to be told of the reasons that this has occurred – see R v Secretary of State for the Home Department ex parte Duggan (1994) 3 All ER 277 and Re McCorley [2000] NIJB 121.
I have reached this conclusion largely because I consider that a prisoner who has been removed from association must be entitled to make representations on the decision to segregate him from other prisoners. On this point, I respectfully disagree with Tudor Evans J in Williams v Home Office. Nor do I consider it necessary that a prisoner be found guilty of a disciplinary offence before he is entitled to be told of the reasons for his segregation from other prisoners. Removal from association has been recognised as having a substantial impact on a prisoner’s life. It carries the risk of psychological damage. In my opinion, the requirements of fairness demand that a prisoner be aware of the reasons for his removal so that he may make representations upon it.
My conclusion that a prisoner should have the right to make representations on his removal under Rule 32 is prompted mainly by my view of the effect that segregation from other inmates has on an individual prisoner. That it has a significant impact on their lifestyle is acknowledged by the provisions of the Prisons and Young Offenders Centres Rules (Northern Ireland) 1995 that govern removal from contact with others in the context of disciplinary proceedings. Confinement in a single cell without contact with other prisoners is recognised as a significant punishment. On adjudications, governors may only impose a maximum of three days cellular confinement – Rule 39 (1) (f) of the 1995 Rules – and a Board of Visitors a maximum of fifty-six days – Rule 40 (2) (f).
The power to remove requires to be exercised circumspectly. The governor may only remove a prisoner from association under Rule 32 for a period of three days and the Board of Visitors can only sanction continued removal for one month at a time. The Woolf report Cmd 1456 (London 1991) observed that the use of the power of removal from association “will invariably affect the inmate who is made the subject of it”. The former Chief Inspector of Prisons, Sir James Hennessy, commented in his 1985 special report on the use of segregation that “it can entail living under an impoverished and monotonous regime which may even be psychologically harmful”. Circular 26/1990 and 6/1993 (which provides guidance to governors and Boards of Visitors in relation to Rule 43 of the Prison Rules in England – the equivalent of Rule 32 in this jurisdiction) suggests that “authorisation [of removal from association] for the maximum period should rarely be necessary”.
Clearly, therefore, the removal of a prisoner from association should not be undertaken lightly and certainly not without giving him the opportunity of making representations upon it, although, as I have said above, it is not invariably necessary that the opportunity to make representations be afforded before the removal takes place. The prison authorities must ensure that a prisoner removed from association is aware of the reasons for his removal at the earliest possible opportunity. As I observe below, segregation from other prisoners is a measure of last resort. It would be wholly inconsistent with that view to sanction the withholding of information which reveals the reasons that the applicant was removed from association.
I am satisfied, however, that the applicant was told of the reasons for his removal from association and that he has had the opportunity to speak to members of the Board of Visitors about their consideration of his continued segregation. He was provided with a document on 21 November 1999 which stated that he had been removed from association for the maintenance of good order and discipline because he had assaulted a prison officer on that date and had continued to display a threatening attitude to staff. Subsequently, he was given the opportunity to speak to members of the Board of Visitors in order to discuss the reasons for his removal from association and on, albeit rare, occasions he did so.
The applicant complains, however, that he was not provided with the monitoring reports on which, it is suggested, he could have made meaningful observations that might have influenced the decision of the Board of Visitors. I consider that the applicant, in common with any prisoner who has been removed from association, is entitled to know why the prison authoritiesrecommend to the Board of Visitors that his segregation should continue. The relay of this information need not necessarily take the form of the release of monitoring records. Provided it captures the essence of the complaints against him, a gist of the monitoring records will suffice. Nor is it necessary that the information be provided in writing. If the nature of the complaints about his behaviour can be conveyed in an interview, this will be adequate.
In the present case, I am satisfied that the applicant was told of the reasons for his initial removal from association and was given the opportunity to learn of the reasons for his continued segregation. I am further satisfied that, when he agreed to see the Board of Visitors, he was sufficiently informed of the reasons that his further segregation had been sanctioned. In these circumstances, I consider that he could expect no more by way of information. If he chooses not to meet members of the Board of Visitors, the prison authorities cannot be required to provide him with information that the Board members would have supplied if he had agreed to meet them.
In general, though, the prison authorities might deem it prudent to set up some means of relaying to prisoners the reasons for their continued detention, either by supplying to the prisoner a synopsis of the monitoring records or by releasing them in their entirety.
(ii) The reasonableness of the decision to remove
As I have indicated above, a decision to remove from association must not be undertaken lightly. Where it is deemed necessary, the aspiration of the prison authorities (and the Board of Visitors) should be to bring the segregation of the prisoner to an end as soon as possible. The longer that the removal endures, therefore, the more scrupulous should be the scrutiny of the reasons offered for its renewal. Boards of Visitors should be aware of the potential for psychological harm of a prisoner who is subject to prolonged segregation from other prisoners. The continued removal of a prisoner should only be approved as a measure of last resort. In other words, the Board of Visitors should only approve a continuation of the removal from association where they consider that no alternative to deal with the prisoner is possible.
In the present case the applicant has acquired a reputation of being an intractable prisoner who is unwilling to submit to a conventional prison regime. He has been involved in frequent clashes with authority that have led to many adjudications in which he has been found guilty of various breaches of prison discipline. He is mistrustful of the Board of Visitors and has frequently failed to co-operate with them or to see them when they wish to speak to him. This lack of co-operation and contact between the applicant and members of the Board of Visitors has made their task unenviably difficult. In the absence of any contribution from Mr Conlon, the Board of Visitors has been, of necessity, reliant on the reports of prison officers as to his behaviour.
Those reports were almost universally bad. In April 2000, when regular monitoring reports began to be compiled, Mr Conlon was reported as being on a “dirty protest” smearing his cell with excrement and urinating beneath the door. He refused to obey instructions and caused his cell to be flooded. He was abusive to a doctor and threatened staff and their families. In May 2000 his behaviour improved somewhat but he was intermittently abusive and threatening to staff and other prisoners. He was “unpredictable and volatile”, according to prison staff. He would regularly pick on one member of staff and attempt to goad that person into a reaction. From time to time, however, he would be quiet and behave relatively normally. This unpredictable pattern continued throughout June and July. In August his behaviour improved somewhat but he continued to stare at staff in an intimidating fashion when removed from his cell and, on occasions, verbally abused them. He was overheard telling another prisoner that he would “fix” a prison officer after his release and that he had arranged to borrow a machine gun for that purpose. He also threatened to attack prison officers if he got the opportunity and stated that he would “bite the nose off” an officer if he could. He was subsequently involved in an assault of a prison officer in which the officer received two bites to his body. In September his behaviour was, on the whole, better but there were occasions when he abused and threatened staff on the smallest pretext such as when he was not given beans with his meal. He singled out a prison officer for particular abuse believing him to be the son of a murdered officer. This officer continued to receive abuse from the applicant during October. During most of October and the first half of November, however, Mr Conlon’s behaviour, apart from occasional lapses, appears to have been reasonable. But on 13 November there was an unpleasant incident in the “search box” when he urinated on the floor and assaulted prison staff.
On 20 November while the applicant was on a legal visit, his television was removed from his cell. I shall discuss the reasons for this later. It was decided to remove the television during the time that the applicant was absent from the cell because it was anticipated that he would raise violent objection to its removal. That indeed proved to be the case. When Mr Conlon discovered that his television had been taken away, he attacked one officer, sinking his teeth into the officer’s cheek. A violent struggle ensued in which another officer was also injured. After being controlled by a restraint team, the applicant kept up a barrage of abuse for the rest of the day. Similar behaviour continued on succeeding days.
The applicant considers that he is the target of abuse and victimisation by prison staff. He asserts that this accounts for much of the complaints about his behaviour. It is clear, however, that the Board of Visitors, presented with the monitoring records that I have summarised above, had little alternative but to renew his period of removal from association. Senior prison officers consistently warned that staff would be at serious risk if the applicant were returned to the normal prison regime. For the most part, the applicant was unwilling to meet with the Board of Visitors. In the face of consistent reports about his conduct towards prison staff and other prisoners, the conclusion reached by successive Boards of Visitors that the applicant should remain segregated from other prisoners was virtually inevitable.
His prolonged removal from association must remain a matter of acute concern, however. He has now been segregated for seventeen months. It appears to me that the prison authorities and the Board of Visitors will want to examine carefully all possibilities for bringing this situation to an end. In view of the material with which the Board has been provided to date, however, it is impossible to say that their decision that he should remain segregated is unreasonable.
The arrangements for legal visits
Although the arrangements for legal visits have now been changed, Mr Treacy suggested that it was necessary that a declaration be made that the arrangements that were previously in place were in breach of the applicant’s rights.
The prison authorities have openly acknowledged that the previous arrangements were unsatisfactory. They have replaced those arrangements with the current provisions to which no challenge is raised. There is no prospect of a return to the previous arrangements. In those circumstances, the issue of a declaration in relation to arrangements which have been abandoned and which will not be replicated would achieve nothing.
The arrangements for the applicant’s showering
The arrangements for the applicant’s showering are less than ideal. He is observed while in the ablutions area but he showers behind an opaque glass. In view of the difficulties that have been experienced with him, I cannot accept that these arrangements are unreasonable.
The removal of the applicant’s television
A television was removed from the applicant’s cell while he was on a visit. It was claimed on his behalf that he had a substantive legitimate expectation that the television would remain in his cell; alternatively, it was argued that he had a legitimate expectation that he would be consulted before it was removed.
The television was removed as a result of a re-evaluation of the regimes within the prison. It was determined that the applicant should be on the “Basic” regime. The basic regime is the lowest level of privileges awarded to prisoners as part of a system of progressive regimes introduced in the prison on 20 November 2000. There are two other levels of regime, standard and enhanced. These are awarded to prisoners who have received satisfactory reports for behaviour, work and co-operation with programmes designed to tackle offending behaviour and participation in other constructive activities.
Nothing was put forward by the applicant to support his claim that he had a substantive legitimate expectation that the television would be allowed to remain in his cell indefinitely. The applicant does not come within any of the three categories outlined in Re Coughlan. Nor was it shown that there was any practice of consulting inmates before introducing a change to the established regime. I am not satisfied, therefore that the claim to a procedural legitimate expectation has been made out.
The timing and circumstances of the removal of the television were unfortunate. In the months preceding this, the applicant’s behaviour, although still far from perfect, had improved and some cautious notes of optimism were being sounded. It was correctly anticipated that Mr Conlon would be strongly opposed to his television being taken away and it was decided to wait until he was away from the cell. While, in hindsight, one may question the wisdom of presenting the applicant with a fait accompli, this decision could not conceivably be said to be irrational.
Article 3 of the Convention
Article 3 of the European Convention on Human Rights provides: –
“No-one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
The European Commission on Human Rights considered this Article in the case of Dhoest v Belgium No10448/83. In that case the applicant was detained in a mental health institution on foot of an order of a Belgian court. He complained that he spent most of his time in isolation. In its Opinion the Commission stated: –
“116. The Commission has already been confronted with a number of cases of prison isolation of varying duration and severity … It has stated on several occasions that prolonged solitary confinement is undesirable, especially where the person is detained on remand.
117. It has on other occasions stated that complete sensory isolation, coupled with total social isolation, can destroy the personality and constitutes a form of treatment which cannot be justified by the requirements of security or for any other reason. It has moreover drawn a distinction between this and removal from association with other prisoners for security, disciplinary or protective reasons, and would not normally consider that this form of segregation from the prison community amounts to inhuman treatment or punishment … The same reasoning applies mutatis mutandis to persons who have been committed to a mental hospital in the framework of criminal proceedings.
118. In making an assessment in a given case, regard must be had to the surrounding circumstances including the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned …”
While recognising that solitary confinement for protracted periods is undesirable, the Commission acknowledged that there would be occasions when, in the interests of good order and discipline, it is necessary to remove a prisoner from association with others. Much depends on the circumstances of the individual case. These include not only the circumstances in which the removal from association occurred in the first place but also the conditions in which the individual is held and the reasons for his continued detention. What began as an acceptable regime may become inhuman if the basis for the continued detention ceases to exist or if the particular conditions in which the prisoner is held can no longer be justified.
In Krocher and Moller v Switzerland D&R 34 (1983) 24 the prison conditions involved isolation, constant artificial lighting, permanent surveillance by closed-circuit television, denial of access to newspapers and radio, and the lack of physical exercise. The Commission concluded that these conditions did not amount to inhuman or degrading treatment, accepting the argument that such conditions were necessary for security.
In the present case the conditions under which the applicant is held do not amount, in my opinion, to a violation of Article 3. In view of the difficulties of management that he has presented, I do not consider that the conditions under which he is held are disproportionate. Many of the privations of which he complains are the consequence of awards made after adjudications or the result of his being on the basic regime. The removal of privileges for breaches of discipline is essential to the effective maintenance of order in a prison. Similarly, the institution of a system whereby prisoners who conform and are not in breach of discipline are rewarded by inclusion on an enhanced regime is conducive to better behaviour generally. I do not consider that the application of either system in the applicant’s case could be said to violate Article 3.
The applicant has claimed that the conditions in which he is held adversely affect his health and, on that account, they constitute a breach of the Article. In Livingstone and Owen, Prison Law, the authors, considering the effect of prison conditions on the health of an inmate, state (at page 316): –
“It is clear that any Article 3 claim will require cogent medical evidence to establish not merely a direct causal link between the prison conditions complained of and the injured or deteriorating health of the applicant but also that the conditions were such as to ‘destroy the personality and cause severe mental and physical suffering’.”
In the present case the applicant has proffered no medical evidence. I am not satisfied, therefore, that the claim that he is suffering from significant mental anguish and frustration has been established.
The arrangements for medical examination of the applicant
Again, the arrangements for medical examination are less than ideal. Given the applicant’s history of violence, however, I consider that the system which is currently in operation achieves a reasonable balance between the need for privacy on the part of the applicant and the need for security for the examining doctor.
Access to an optician and a dentist
It is accepted that the applicant made requests to be seen by a dentist and that he has now requested that he should be seen by an optician. Emergency treatment only was available for dental problems but the applicant’s request is being dealt with. Arrangements are being made to have him seen by an optician. It is unnecessary that any declaration be made in relation to these matters.
Investigation of the applicant’s complaints
Governor Cromie interviewed the applicant on 21 July 1999 about a complaint that he had made some days previously. The nature of the complaint was not immediately apparent at the start of the interview. The discussion centred on a drawing that the applicant had executed of a clenched fist in a ‘black power’ salute with a Celtic design border. The caption on the drawing was “Fuck the system”. The applicant had put this on the door of his cell. He was asked to remove the drawing. He considered that this instruction constituted discrimination against him because he was black and Catholic. He pointed out that there was an abundance of pornographic material covering the walls of prisoners’ cells and they had not been asked to remove them. The governor asked the applicant whether he agreed that the word “fuck” could be offensive to people. Mr Conlon agreed that some people could find this offensive. The governor then suggested to the applicant that some people might find the black power symbol offensive in the same way that a black person might find a Ku Klux Klan symbol offensive. Mr Conlon suggested that the black power symbol would not be visible for most of the day because his cell door was closed. The remainder of the discussion centred on the applicant’s assertion that the removal of the poster was discriminatory of him as a black man and a Catholic and the governor’s suggestion to him that the poster could be offensive to others.
On behalf of the applicant Mr Treacy suggested that the governor attempted to trick the applicant into accepting that the word “fuck” was offensive in order to distract Mr Conlon from pursuing his complaint that he was being less favourably treated. I cannot accept that claim. I consider that the governor fully investigated the applicant’s complaint. No restriction was placed on Mr Conlon. He was able to fully ventilate his grievance. The questions asked by the governor were apposite and pertinent.
Mr Treacy argued that the governor ought to have interviewed the prison officer who took down the drawing. I do not accept that. I consider that the governor was entitled to conclude, on the basis of his interview of the applicant, that the officer concerned was fully justified in his decision to remove the poster.
On 22 October 1999 the applicant submitted a written complaint that he had been the victim of institutional racism. This contained the following passage: –
“The essence of my complaint is that I have had my association restricted since 4 December 1998 and have been brutalised, degraded and humiliated in that period, whilst other prisoners (white ones) who are certainly as bad if not, indeed, worse than me have only had their association restricted for two or three months at a time at most.
THE ONLY DIFFERENCE BETWEEN ME AND THESE OTHER PRISONERS IS THE COLOUR OF MY SKIN.
I will detail my complaint to the investigating officer as I do not feel able to express my complaint fully in writing.”
This elicited a response from the Operational Management Division of the Prison Service in an undated memorandum. It contained the following: –
“It is not apparent from your note, as you have not specified incidences (sic) of discrimination, whether you are making a general complaint or if you are citing prison staff or indeed the Board of Visitors. There can be no investigation without details of the incidents where you allege discrimination took place.
It is fully appreciated that racial discrimination must be taken seriously. It is, however, the responsibility of the governor to ensure that all prisoners, irrespective of race, colour, sex or religion are treated fairly and without discrimination. You have not shown that the governor has failed to achieve this responsibility.”
Governor Edgar had prepared a note on the applicant’s complaint on 23 October 1999. This detailed Mr Conlon’s convictions and his behaviour while in custody. The memorandum also stated: –
“It is the firm opinion of management at all levels that Conlon presents a real and continuing threat not only to the good order and discipline of this establishment but also to the personal safety of staff and other prisoners. Perhaps the factor which causes greatest concern is the apparent total unpredictability of his out bursts.”
Mr Treacy argued that the reaction of the prison authorities utterly failed to address the complaints made by the applicant. Governor Edgar’s memorandum dealt with the applicant’s previous record rather than his complaints. The letter from the Operational Management Division did not address his complaint at all. Mr Treacy argued that the Prison Service was under an obligation to investigate the applicant’s complaint both under common law and by virtue of its duty arising from Article 3 of the Convention. On behalf of the respondent, Mr Maguire suggested that the Prison Service was under no such obligation.
It is unnecessary to resolve the dispute between the parties as to the obligation (if any) to investigate the applicant’s complaints. It is clear that the Prison Service was prepared to investigate allegations of discrimination if the applicant provided details of incidents of discrimination. He has not provided those details. I do not consider that the applicant is entitled to require that an investigation take place before he discloses those details.
Conclusions
I have decided that none of the claims made by the applicant has been made out. The application for judicial review must be dismissed, therefore. As I have made clear earlier in this judgment, however, the continued isolation of Mr Conlon is a matter of grave concern. It seems to me that his continued removal from association requires both the governor and the Board of Visitors to scrupulously examine all possible alternatives to the present situation.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
