R (on the application of Bourgass and another) (Appellants) v Secretary of State for Justice (Respondent)

The Supreme Court was asked to determine the legality of the continued segregation of two prisoners, Kamel Bourgass and Tanvir Hussain, under the Prison Rules 1999. The court was required to decide whether the decisions to keep the appellants in segregation for substantial periods were taken lawfully, focusing on the statutory requirements and the applicable procedural fairness principles. The court had to address the question of whether the segregation was authorised as required by the applicable legislation and whether the requirements of procedural fairness were met. Additionally, the court considered the compatibility of the judicial review process with the requirements of article 6.1 of the European Convention on Human Rights.

The court held that the segregation of the appellants was not lawfully authorised. The decision to keep the appellants in segregation beyond the initial 72 hours was not given by the Secretary of State, as required by rule 45(2) of the Prison Rules 1999, but by a prison governor or other prison officers. The court concluded that the Carltona principle, which allows decisions made by officials to be treated as decisions of the minister, did not apply to the function of authorising continued segregation under rule 45(2). The court found that the Secretary of State’s purported delegation of his function under rule 45(2) to the chairman of the Segregation Review Board was unlawful. The court also determined that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken by the Secretary of State under rule 45(2), and that the prisoner must be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. The court concluded that the availability of judicial review would meet the requirements of article 6.1 in this context.

The court allowed the appeals, declaring that the appellants' segregation beyond the initial period of 72 hours was not authorised by the Secretary of State and was accordingly unlawful.