Routine practice of holding prisoners in solitary confinement for long periods is unlawful, Supreme Court rules

Prison governors who keep prisoners in solitary confinement for longer than 72 hours without external authorisation are acting unlawfully, the Supreme Court ruled today (Wednesday 29 July).

The practice, which is routine in prisons across England and Wales, was challenged in a landmark legal case, which heard that 28 prisoners took their own lives while being held in segregation units between January 2007 and March 2014.

The Howard League for Penal Reform intervened in the case – R (on the application of Bourgass and another) v Secretary of State for Justice – in a neutral capacity to provide expert evidence, based on the charity’s many years of experience in working in prisons, conducting research and representing young people in custody.

The Supreme Court found that the Prison Rules include an inbuilt safeguard for the prisoner which can only be meaningful if the authorisation of segregation beyond 72 hours is performed by an official from outside the prison.

The Howard League’s experience of working with prisoners subjected to long-term segregation is that they often tend to be the most disturbed and vulnerable, characterised by being young, institutionalised, with mental health difficulties and histories of self-harm and attempted suicide.

The charity has worked with a number of young people who have been segregated for long periods pending a transfer to hospital under the Mental Health Act or who have self-harmed prolifically while detained for many months in isolation. There is no clear route for prisoners to challenge their segregation and no independent scrutiny of it.

The Howard League’s experience is that segregating vulnerable and disturbed people tends to make their problems worse. The most vulnerable are the least equipped to challenge their segregation without help or a fair system in place. The risks of putting people in solitary confinement are clear, but the safeguards are inadequate.

Frances Crook, Chief Executive of the Howard League for Penal Reform, said: “We welcome this landmark decision. The Secretary of State for Justice will need to take urgent steps to alter the segregation process to ensure that it complies with the Prison and Young Offenders’ Rules by providing for external scrutiny of decisions to segregate beyond 72 hours.

“It was a decade ago that the Howard League took the first challenge to the practice of holding children for long periods in solitary confinement in prisons, even when they were self-injuring. We won a landmark case that made one step towards protecting children, so today’s judgment is very welcome as it protects children and adults.

“The Howard League is today writing to seek a meeting with the Ministry of Justice to discuss how this will work in practice. It is essential that the mechanics of the new system is based on sound principles.”

Notes to editors

1. The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
2. The Howard League was a neutral intervener in the case and was represented by Edward Fitzgerald QC and Martha Spurrier of Doughty Street Chambers, instructed by Clifford Chance LLP.
3. The appellants were represented by Dinah Rose QC of Blackstone Chambers and Dan Squires of Matrix, instructed by Birnberg Peirce and Partners.
4. In June 2015, the Prisons and Probation Ombudsman published a bulletin on the deaths of prisoners who took their own lives while being held in segregation. The report revealed that the number of suicides in segregation units was at its highest level for almost a decade. The Howard League’s response to the bulletin can be found here.

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