Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 192
P1406/09	OPINION OF LORD MALCOLM in the cause IMRAN SHAHID Petitioner; against SCOTTISH MINISTERS Respondents: for judicial review of decisions regarding the petitioner's segregation ­­­­­­­­­­­­­­­­­_______________

Petitioner: Collins, Q.C.; Balfour + Manson LLP for Taylor & Kelly, Solicitors, Coatbridge

Respondents: Ross, Advocate: Scottish Government Legal Directorate

18 November 2011

[1] In November 2006 the petitioner, along with his brother and another, was convicted of the racially motivated murder of Kriss Donald. The brutal and sadistic nature of the crime, carried out on a 15 year old boy, raised strong feelings at the time and ever since. The trial judge described the petitioner as "a thug and a bully" and "the leader of this wicked expedition". On 10 October 2005, whilst on remand at HMP Barlinne, he was removed from general association with other prisoners ("segregated"). He was thereafter continuously segregated at HMP Barlinnie until 18 September 2006, when he was transferred to HMP Edinburgh to stand trial. Following this transfer, and for the duration of the trial, the petitioner was accommodated in association with other prisoners ("mainstream"). After conviction on 8 November 2006 he was sentenced to life imprisonment with a punishment part of 25 years. The following day he was returned to HMP Barlinnie and again placed in segregation. The petitioner was then continuously segregated in HMP Barlinnie and other prisons until 13 August 2010 when he was returned to the mainstream prison population.

[2] This application for judicial review concerns the decisions taken to segregate the petitioner during his imprisonment. The Scottish Ministers (the respondents) are responsible for the general superintendence of prisons and for the rules regarding the regulation and management of prisons. They appoint the governors and other officers of prisons required by the Prisons (Scotland) Act 1989 and are liable for any wrongful acts of those governors and other officials. The petition was served upon other parties including the Lord Advocate, the Advocate General for Scotland, the Scottish Prison Service (SPS) and the governors of HMP Prisons at Barlinnie, Perth, Shotts and Glenochil. Only the Scottish Ministers have entered appearance.

[3] At the outset it is appropriate to summarise the grounds of challenge and the respondents' responses to them. The petitioner has three complaints:

(i) That his segregation was, for substantial periods, illegal because of failures by the respondents to comply with time limits in the relevant statutory provisions.

(ii) That the petitioner's segregation amounted to inhuman or degrading treatment contrary to article 3 of the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR); and

(iii) That if there was no breach of article 3, the interference with the petitioner's right to respect for his private life under article 8.1, which is inherent in segregation, was not "in accordance with law" for the purposes of article 8.2, and that accordingly there had been a breach of that article. Reference is made to the breaches of the time limits; the role of a non-statutory committee of the respondents; the lack of a maximum period for segregation; and an alleged absence of a right of appeal against segregation to a judicial authority.

[4] The principal remedies sought by the petitioner are declarators that his segregation between the dates mentioned was ultra vires of the relevant rules and contrary to article 3 ECHR, which failing article 8. In respect of the alleged breach of the Convention, the petitioner seeks damages by way of just satisfaction, though it is recognised that any award would be modest.

[5] In response the respondents accept that there were examples of non-compliance with the time limits specified in the Prison Rules. However there had been substantial observance and, when consideration is given to the scheme and purpose of the Rules, illegality was not the intended consequence of such non-compliance. As to the alleged violation of article 3 of ECHR, it is necessary to consider the whole circumstances, including the conditions and regime, the length of the segregation, and the purpose of the measures taken. Within the prison population there was a high level of feeling against the petitioner on account of his involvement in the murder of Kriss Donald. The view was taken that if he was placed in mainstream accommodation, he would be at serious risk of assault and injury. In the whole circumstances the segregation of the petitioner was not contrary to his rights under article 3. Furthermore any impact on the petitioner's article 8 rights did not attain the necessary level of seriousness, failing which the measures taken were justified in terms of article 8(2). In the event that there has been an infringement of the petitioner's Convention rights, just satisfaction would be afforded by a finding of such breach. The decisions complained of having ceased to have any continuing consequences for the petitioner, the remedies of declarator should be refused (although it was not argued that the present application is academic).

The relevant statutory provisions.

[6] Section 10 of the Prisons (Scotland) Act 1989 provides that a prisoner may be lawfully confined at any prison and be committed to such prisons as the Scottish Ministers may from time to time direct, and may be moved by them from any prison to any other prison. Section 39 of the Act allows the Scottish Ministers to make rules for the regulation and management of prisons. As at 10 October 2005 the relevant provisions for the purpose of section 39 were the Prison and Young Offenders Institutions (Scotland) Rules 1994. On 26 March 2006 those Rules were replaced by the Prisons and Young Offenders Institutions (Scotland) Rules 2006. While there are differences between the two sets of Rules, for present purposes it is sufficient to summarise the relevant provisions of the 2006 Rules. Rule 94 allows the governor of a prison to remove a prisoner from association with other prisoners for the purpose of -

(a)               maintaining good order or discipline;

(b)              protecting the interests of any prisoner; or

(c)               ensuring the safety of other persons.

The removal may be either general or during any period the prisoner is engaged or taking part in a prescribed activity. The petitioner was subject to general removal. Any Rule 94 order must specify the reasons for the order and record the date and time when it is made. No prisoner shall be subject to segregation for a period in excess of 72 hours, except where the Scottish Ministers have granted written authority on the application of the governor prior to the expiry of the said period. Any authority granted by the Scottish Ministers shall have effect for a period of one month commencing from the expiry of the period of 72 hours, 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. At any time the governor of the relevant prison has power to cancel or vary an order. If a prisoner is moved from one prison to another prison, any such order ceases to have effect, but without prejudice to the power of the governor of the new prison to make a Rule 94 order. Where a prisoner has been removed from association, a medical officer is required to visit that prisoner as soon as practicable and thereafter as often as is necessary, but at least once in every seven days.

The facts

[7] A considerable amount of documentation in respect of the petitioner's management over the years has been lodged. I shall now outline the general picture which emerges from that material. In October 2005, when the petitioner was on remand, the authorities were in receipt of intelligence (of the highest grading in terms of reliability) to the effect that other prisoners intended to assault the petitioner and his co-accused, they being regarded as "beasts". On 7 October 2005 the petitioner was admitted to the segregation unit at Barlinnie after assaulting another prisoner. It was noted that the alleged crime had caused

"highly racial motivated feelings within the local remand population and has rendered Mr Shahid a target for retribution from other prisoners. Mr Shahid has refused protection therefore it is seen as the safest option at this stage for Mr Shahid to remain within the segregation unit to allow us to maintain good order and discipline and ensuring the safety of others and to allow us to investigate alternative arrangements as to the safest and most appropriate environment for Mr Shahid".

This set the tone and context for much of the management of the petitioner for the next five years and during his transfers from prison to prison. Throughout that period there continued to be ex facie reliable information that the petitioner would be at risk of harm at the hands of other prisoners. For example, in November 2006, coinciding with the petitioner's conviction, intelligence indicated that, given the nature of the offence, a number of prisoners in HMP Glenochil had indicated that they would seriously assault the petitioner and his co‑accused in the event that they were placed at Glenochil. In general there was at that time, and subsequently, a real concern that, if the opportunity arose, other prisoners would carry out a revenge racial attack upon the petitioner and his co-accused.

[8] On a regular basis Scottish Ministers granted applications by governors for renewal of the petitioner's segregation for the requisite 30 day period. For example, on 9 November 2006 in an extension application the governor at HMP Barlinnie stated

"Mr Shahid was admitted to the segregation unit on Thursday 9 November 2006 from HMP Edinburgh. Mr Shahid had received a life term sentence on Wednesday 8 November for the murder of a 15 year old white male. This murder and trial had been high profile with a great deal of media interest being shown throughout the duration of the court case. This crime has caused highly racial motivated feelings within the local prisoner population and has rendered Mr Shahid a target for retribution from other prisoners. Mr Shahid is aware of the reasons that he is currently housed within segregation and appreciates that if he were to be located within any residential function, this would result in him being a target of assault and abuse".

As to the reason why an extension was necessary, the governor stated

"Mr Shahid has settled into the segregation unit regime and has been polite and respectful to staff since admission. He has refused any suggestion of protection; however, during discussion, when challenged, he has stated that he will seriously assault any prisoner who he sees as a threat if he was to return to the mainstream environment and understands the requirement for him to be located separately and safely at this time. He is aware that other prisoners will attempt to assault him because of the high feeling of retribution towards him due to the nature of his crime. It is seen as the safest option at this stage for Mr Shahid to remain within the segregation unit; therefore, we request that a Rule 94 be granted to allow for the maintaining of good order and discipline whilst protecting the interest of others".

That application was granted on behalf of the Scottish Ministers by the operations manager of the Scottish Prison Service on 10 November 2006.

[9] A meeting was held on 22 November 2006 between the managers responsible for the segregation units within HM Prisons Shotts, Glenochil, Barlinnie, Perth and Edinburgh. The stated purpose was to heighten awareness of the level of threat towards the petitioner and his co-accused from other prisoners based upon intelligence received, and to agree a rolling programme for their management and progression ensuring that guidelines on the management of prisoners removed from association were followed. It was agreed that all prisons would have to look at their own measures as the geography of each location was different and presented its own risks. It was agreed that the prisoners would be kept separate and safe at all times. Each prisoner would be treated as an individual. The responsible managers would meet every two months prior to transfer of the prisoners to discuss background reports, progress to date and any issues that may be relevant to their future management at another establishment. This would ensure continuity and consistency. An agreed chart was compiled showing the intended locations for each of the prisoners over the following twelve months. Transfers would take place in consultation with each prison.

[10] In the next extension application the governor indicated that Mr Shahid had settled into the segregation unit regime "without too much fuss". However there was still a lot of media coverage of the offence and serious threats were being made should he be located in a mainstream environment. His safety could not be guaranteed "hence the need for an extension to this current Rule 94 period." It was also noted that the petitioner

"is getting agitated that he is not getting the opportunity to progress to mainstream conditions - he knows that other prisoners will have a go at him but he feels he can handle it without too much bother as he has loads of friends in the LTP (long term prisoner) system - he is fully aware of why we are holding him on Rule 94 conditions but feels he should be allowed to take care of himself come what may".

In the coming months matters continued in similar vein. The paperwork indicated that the petitioner was being "managed by ECMDP" (the Executive Committee for the Management of Difficult Prisoners) and "as such they determine his location". On 22 March 2007 it was stated that the petitioner "would be held in segregation until a decision was taken by the ECMDP to relocate Mr Shahid to a mainstream regime". At around that time Mr Shahid was suggesting that he be segregated along with his co-accused. He was making it clear that he did not want to be in segregation.

[11] In March 2007 intelligence indicated, that whilst on route to the gym, the petitioner was subjected to racial abuse from a large group of other prisoners, to which he reacted by threatening to retaliate with violence, making a move towards them. In April 2007 the petitioner was transferred to HMP Perth. It was indicated that he was being managed by the ECMDP and that "any major decisions on his management are made by them". The "short term view" was that he would be held in segregation until a decision was taken by ECMDP to relocate him into a mainstream regime.

[12] In early June 2007 reference was made to an "agreed rolling transfer programme" regarding the three convicted persons. At around that time intelligence was suggesting that the petitioner had received threatening comments in a letter. By July 2007 the petitioner had been transferred to HMP Shotts. It was recorded that Shotts was looking at integration into mainstream, possibly at the NIC (National Induction Centre), and that this aim would form the underlying focus of the terms of his case management. There were no addiction issues and it was requested by Mr Shahid that he be allowed to begin a programme of physical training. It was agreed to contact the gym and set this up.

[13] The records contain considerable intelligence in August 2007 to the general effect that prisoners in the NIC were unhappy about the petitioner attending the hall during recreation. Several complaints and threats to his safety had been made. If he were placed in mainstream "he would come to great harm". A magazine carried an article stating that there was a "contract" on the petitioner for £5,000 for a prisoner to slash or scald him. In August reference was made to a "phased integration protocol" being implemented. The following month attempts to reintegrate the petitioner provoked protests. Prisoners were prepared to assault him and he attempted to assault one prisoner. Local management was of the view that reintegration was not safe at that time. In October 2007 it was noted that the petitioner's safety was "still gravely at risk". The following month a further extension was sought "whilst (the petitioner's) overall management is considered on a national level". Management was looking at ways of enhancing the current regime by way of "PT, education or such like". In December 2007 it was not envisaged that reintegration would be possible for some time. It was noted that the petitioner's case would be discussed at the January ECMDP meeting.

[14] In January 2008 it was recorded that the petitioner had made progress regarding PT, his mental health was "fine", and he was coping reasonably well under Rule 94 conditions. That month, as part of an agreement reached at the ECMDP meeting, the petitioner was returned to the segregation unit at HMP Barlinne. Rule 94 conditions were thought to be appropriate pending "long term management being put in place via ECMDP". There was still bad feeling towards the petitioner in the prison population and there could be no guarantees about his safety or the safety of others within the mainstream environment at Barlinnie.

[15] Thereafter monthly review applications became repetitive in their terms. In particular it was noted that there was bad feeling towards the petitioner; his safety could not be guaranteed; and Rule 94 conditions should continue pending a long term management plan via ECMDP. The petitioner began to complain about adverse effects on his mental health and his need for human contact. He suggested being placed in a unit along with his co-accused. By the middle of 2008 he was complaining of fear of open spaces and paranoia around any people - even family. His family had visited only twice in a year, and he had not gone to the exercise yard for over six months. Matters continued in this way with no sign of the promised long term management plan.

[16] In September 2008 it was noted that on a number of occasions when the petitioner was being escorted from the unit for visits, etc, he would attempt to intimidate other prisoners, which resulted in some verbal exchanges. It was considered that Rule 94 conditions were appropriate "till a long term management plan was put in place by ECMDP ...". It was agreed that the petitioner would be referred to the mental health team for assessment. In October 2008 it was explained that the petitioner's request to be located in a small unit in association was unlikely to be granted. On 21 October 2008 the ECMDP met. It concluded that the threat to the petitioner's safety was high, and he could not be considered for mainstream prison conditions at that time.

[17] In November 2008 the Rule 94 paperwork noted that some progress had been made with one co-accused, who was by then in normal circulation in HMP Dumfries and that this might be an option for the petitioner in the future. The petitioner considered that this demonstrated that the perceived threats against him had been exaggerated. He was using the gym on a daily basis. The following month it was recorded that both co‑accused were in Dumfries without any apparent problems. The petitioner was making it plain that he wished to be returned to mainstream conditions. In January 2009 the ECMDP observed that the petitioner had been in Barlinnie's segregation unit for 12 months and that the impact of such a lengthy period within one unit on both him and the staff was a cause for concern for local management. It was decided to transfer the petitioner to HMP Glenochil to ensure that "the opportunity of 'conditioning' for both the prisoner and staff" was addressed.

[18] By March 2009 the petitioner had been transferred to Glenochil. Management requested authority to use Rule 94 so that a full action plan could be formulated through a case conference process after full risk assessment. In April 2009 it was noted that local management was carrying out a portfolio of risk assessments with the intention of confirming that the petitioner could be returned to the mainstream prison population. Rule 94 was continued meantime pending an action plan for his management. Reference was made to a verbal exchange between the petitioner and other prisoners. It is plain that at this stage the petitioner was becoming increasingly frustrated at the lack of progress, especially since by this time his two co-accused were in mainstream conditions with no apparent problems. He commented that he had never been assaulted, even when other prisoners had the opportunity to attack him.

[19] In May 2009 the petitioner began attending a class for the Muslim population in HMP Glenochil. The Rule 94 paperwork referred to management "carrying out all relevant risk assessments". During a case conference in June 2009 emphasis was placed upon concerns regarding the petitioner's behaviour and character. He explained that his behaviour was probably the result of his segregation. The following month it was noted that progress had been made with the risk assessments. A series of proposals and options for the petitioner's future management had been documented. It was likely that there would be a proposal for a staged return to full association. An action plan was likely to be agreed in a couple of weeks. That month the petitioner attended an integrated case management conference when he became abusive after being challenged about his offence. In the second half of 2009 management continued to receive intelligence reports suggesting that there remained ill feeling towards the petitioner within the mainstream prison population. In August 2009 the process of evaluation and assessment was still ongoing amid continuing concerns regarding the petitioner's safety. "Permission is sought to continue to hold Mr Shahid under Rule 94 conditions so that further progress can be made in identifying a safe and appropriate location in a mainstream environment". Mr Shahid was recorded as expressing the following sentiments "I am sick to death of hearing the same promises of mainstream and at the first newspaper article I see the SPS retract and change their position to continue my unwarranted and unwanted segregation". He complained of "cruel and inhuman torture (mental and physical)".

[20] At a meeting of the ECMDP in early September 2009 reference was made to "gradual constructive steps to reintegrate to mainstream conditions ... one step at a time ...". It was noted that there were no segregation staff at Muslim prayers. The petitioner had a lot of enemies in Pollokshields. £20,000 was on his head. It was difficult for Glenochil to integrate him into mainstream and HMP Shotts had agreed to take him in the hope of him being moved to the National Induction Centre. Later that month the Rule 94 paperwork noted that the petitioner had been held

"under the auspices of the ECMDP for a considerable period to allow the maintenance of good order and discipline within the prison estate due to the threat of repercussions over his crime. He has been transferred to HMP Shotts where management intend to explore the possibilities of his potential transfer to a residential setting. This will be a long term process and for the initial 72 hour period it is felt appropriate to hold Mr Shahid on conditions of Rule 94 to allow the continued maintenance of good order and discipline as well as Mr Shahid and local management the opportunity to meet his initial requirements within Shotts before starting into dialogue over his progression plans. Management hereby apply to extend Mr Shahid's Rule 94 provisions for a period of up to one month. During this time management will meet with Mr Shahid to discuss his future case management in terms of future progression and feasibility for potential reintegration into mainstream conditions".

[21] In October 2009 intelligence reports indicated the potential for disruption of the prison regime, sit down protests, etc. Threats were being made that the petitioner was a beast and would "get stabbed". It was suggested that the petitioner had a price on his head and would be "done" within two days of going to the NIC. A petition was circulating relating to a refusal by prisoners to attend work in protest. There was additional concern in relation to particularly bad feeling between the petitioner and one specific mainstream prisoner. At or about this time it was agreed that management would begin the process of integrating the petitioner into the NIC by him attending sessions in the mornings and afternoons to allow him to experience all aspects of the regime. A further case conference would review his progress and, if all had gone well and no issues had arisen, management would consider integration. An ECMDP meeting in November 2009 noted "a recent increase in intelligence regarding potential challenges to his safety if he were to return to a mainstream hall".

[22] In the Rule 94 paperwork for November 2009 it was noted

"Mr Shahid is being held under the auspices of the ECMDP for 47 months to allow the maintenance of good order and discipline within the prison estate due to the threat of repercussions over his crime. HMP Shotts management have been exploring the possibilities of his potential transfer to the NIC. However there has been some resistance from prisoners in other halls to his integration, which leads management to believe the threats that led to his initial removal are still live. Due to this information it is felt appropriate to continue to hold Mr Shahid on Rule 94 conditions to allow the continued maintenance of good order and discipline as well as allowing Mr Shahid and local management the opportunity to continue dialogue over his progression plans. Permission is hereby sought to extend Mr Shahid's Rule 94 provisions for a period of up to one month. During this time management will continue to meet with Mr Shahid to discuss his future case management in terms of future progression and feasibility for potential reintegration into mainstream conditions".

At the associated November case conference, when informed of the intelligence threats which precluded integration into the NIC, it is recorded that the petitioner

"countered that he should be allowed to sign a disclaimer as he felt he should be allowed to 'face-up' to any threats himself. Much heated discussion ensued, however Mr Peat stated he felt there was weight and gravitas behind the threats and corporately the SPS could not justify reintegration whilst the threats were 'live'. Mr Hunstone stated that the SPS as an organisation could not justify putting a prisoner's health and safety at risk. Mr Peat concluded the meeting by stating that Mr Shahid's case management had been referred back to the ECMDP (meeting date 10/11/09) and depending on the recommendations a Rule 94 extension will be applied for".

[23] The following month at the equivalent conference it was stated that there was no change in management's position over the last four weeks - namely reintegration was not a viable option. Mr Shahid raised the possibility of the use of facilities within the education department and it was stated that this was under review, with Friday afternoons being a possibility.

"After much general discussion the conference ended with Mr Peat stating that he understood Mr Shahid's feelings of frustration, however, there was no alternative but to keep Mr Shahid under Rule 94 conditions within the segregation unit for a further four weeks".

[24] The authorities continued to receive intelligence indicating a threat against the petitioner, who was seen as a racist. Matters continued in similar vein throughout the early part of 2010. In February mention was made of Shotts management and intelligence unit conducting a feasibility study into the possibility of again attempting the petitioner's reintegration at the NIC. In March management stressed that intelligence indicated that there was a live threat to the petitioner's safety. If possible, and if a favourable security position was achieved, plans would be put in place for reintegration. The petitioner would be encouraged regarding a gymnasium routine (in respect of which he was making good use) and to work with any interventions deemed necessary to help him prepare for possible long term reintegration. It was emphasised that it was "too early" to estimate for how long he would require to be managed under Rule 94 conditions. As indicated above, each month there was a case conference involving, amongst others, the petitioner. The records at this stage indicate that much the same things were being said and discussed at each of these meetings.

[25] In March the ECMDP noted that, though the management at Shotts was looking at options for a reintegration plan, they had identified that the general prison population raised concerns whenever it appeared that the petitioner may be moved from segregation. On 18 May the same committee acknowledged that Shotts had twice attempted to reintegrate the petitioner but this did not go well. Intelligence reports continued to indicate that he was not safe in mainstream conditions. HMP Edinburgh had agreed to take the petitioner, and on 11 June 2010 the petitioner was transferred to Edinburgh. He was located in the segregation unit to allow management to carry out a risk assessment. The following month it was noted that local management had analysed the potential risks to the petitioner's reintegration.

"It has been concluded that an attempt to integrate Mr Shahid into the mainstream population at Edinburgh will be made over the course of the next seven weeks ... A staged and supportive plan has been discussed and agreed with Mr Shahid. A target date for full integration is planned for no later than 30 August 2010. Authority is therefore sought from Scottish Ministers to extend Mr Shahid's removal from association for a second month at Edinburgh to allow planned progress to be made and evaluated. At this stage the petitioner indicated that he would not attend any more case conference meetings since he was 'sick of repeating the same rebuttal of the SPS decision to continue my segregation ...'."

[26] In the result the planned reintegration of the petitioner into general association was achieved. In early October 2010 there was a return to segregation for one month after the petitioner was involved in an orchestrated fight with other prisoners from one hall against prisoners from another hall. Thereafter he was moved to the mainstream prison population.

Late Rule 94 orders
[27] At this point I will address the first ground of challenge to the segregation orders. It is a matter of admission that on a number of occasions the time limits set down in the Prison Rules for approval of extensions or renewal of extensions were not met. A table of late orders was supplied. It is agreed to be broadly accurate. (Minor disputes on detail are not critical.) Orders were signed late on 15 occasions in the period from 13 December 2005 to 13 March 2010. One order was late by ten minutes. Five were late by under six hours. Five orders were late by between 15 and 25 hours. Three were late by between 41 and 48 hours. One was late by about 66 hours. The late orders were signed by several different SPS senior officers, all authorised to perform the relevant statutory duties of the Scottish Ministers. The rest of the 70 or thereby orders were granted on time.

Submissions for the petitioner

[28] Mr Collins submitted that if an order for an extension or for renewal of authority was non-timeous, not only was the period of segregation relevant to that order unlawful, but also any subsequent periods of segregation directly linked to the late order. Even if a subsequent order was timeous, it could not renew an unlawful segregation. Thus it was contended that for some 40 months of the overall period the petitioner's segregation was invalid. At best there was a fundamental failure to understand the importance of compliance with the timetable set down in the Rules, or, at worst, a flagrant disregard of them. Compliance was a condition precedent to lawful segregation. The relevant SPS guidance emphasises their importance. In general the Rules recognise a prisoner's general right to associate with other prisoners. The time limits were "tightened-up" in the 2006 revision to the Rules.

[29] Segregation is an extremely serious matter, and no leeway is, or should be, countenanced. Properly construed, the intention is that segregation carried out in breach of the Rules should be regarded as unlawful. Emphasis was placed upon R v Soneji [2006] 1 AC 340 and R v Clarke [2008] 1 WLR 338. Mr Collins submitted that, although no right of damages accrues from such a breach, public law remedies are available, cf. R v The Deputy Governor of Parkhurst ex parte Hague [1992] 1 AC 58. Reference was made to King v Secretary of State for Justice [2010] EWCA Crim 2522. The scope, purpose and intention of the Rules required strict compliance with the time limits, otherwise segregation would be unlawful.

Submissions on behalf of the respondents

[30] For the respondents Mr Ross submitted that the basic structure of the Rules was not altered by the 2006 revisions. Most of the orders with which this case is concerned were made under Rule 94 of the 2006 Rules. There is no maximum period for segregation either in the Rules or in European law. It was conceded that the time limits required to be computed from hour to hour. Even if a late order was invalid it was not accepted that this would "taint or poison" subsequent timeous decisions. This could result in a ten minute delay in one order rendering several months of regularly arranged segregation unlawful. That would be a surprising outcome.

[31] Mr Ross acknowledged that it was intended, indeed expected that the time limits would be obeyed. However, for present purposes the question is - what was the intention of the legislature if they were not followed? The primary legislation and the Rules are silent on the consequences of non-compliance. Reference was made to Charles v The Judicial and Legal Services Commission [2003] 2 LRC 422. The delays were not the result of bad faith or improper motives. In the overall context they were not lengthy. It was understandable how they could have occurred. In Soneji the matter was approached by asking whether Parliament could fairly be taken as having intended that non-compliance would result in illegality. When regard was had to the whole picture

(i) There was substantial compliance with the time limits - there was no "dragging of the heels".

(ii) The delays caused no material prejudice to the petitioner.

(iii) Those involved acted in good faith.

(iv) An overly strict or inflexible approach would be contrary to the intention of the Rules.

In the context of an ongoing concern as to the petitioner's safety in the mainstream prison population, if there was any question as to the validity of the orders being made on behalf of the Scottish Ministers, the governor of the relevant prison could, at any time, make a fresh order under Rule 94(1) and then obtain timeous extensions, etc. At no stage would recognition of any invalidity have led to a return to the mainstream prison population for the petitioner. Rather the process would recommence by way of a fresh order. No doubt it would be different if there was a considered refusal or failure to grant an extension or renewal, and nonetheless the prisoner remained in segregation - but this is not such a case.

[32] The Hague case decided, in effect, that the Prison Rules in England and Wales are directory, not mandatory. The main purpose of the Rules is to ensure oversight of the segregation regime by Scottish Ministers. Segregation beyond 72 hours is not left to the sole discretion of the local management. Of the 70 or so orders, only 15 were late. Of those, most were late by less than 24 hours. It cannot fairly be said that there was a flagrant disregard of the Rules. The petitioner's approach would cause an absurd result. It would be ridiculous if a five minute delay at one point invalidated six months of otherwise unimpeachable segregation.

Further submissions for the petitioner

[33] In response to these submissions Mr Collins stressed that segregation amounts to "imprisonment within a prison". It is a deprivation of a prisoner's residual liberties. The time limits are calculated on an hour to hour basis, thus demonstrating their importance. A delay of one hour matters. Reference was made to paragraph 1 of the relevant guidance and to paragraphs 12 and 26 of Professor Coyle's first report. There is international concern as to the serious harm which can be caused by long term segregation, cf. Ahmad v The United Kingdom Application no. 24027/07 (6 July 2010) at paragraphs 76 and 90/7. Reference was made to Onoufriou v Cyprus, Application no. 24407/04 (7 January 2010). Segregation should be used only in exceptional circumstances and for as short a time as possible.

[34] In the present case there had not been substantial compliance. At most, a five minute delay might be substantial compliance. It was accepted that a governor could have made a fresh Rule 94(1) order, but that was not what happened. There had been prejudice in that the petitioner should have been returned to the mainstream prison population. The number and nature of the late orders would suggest that the respondents were not acting in good faith. The failures were glaring and repeated by several different officials. They were either incompetent, unqualified or willing to grant out of time orders. The suggested consequences would not be absurd or nonsensical. Though damages are not available, there would be judicial review remedies. It was accepted that any judicial review proceedings could be met by the governor issuing a fresh Rule 94(1) order, however none of this rendered the submission absurd. If Parliament was unhappy with the illegality, the Prison Rules could be altered.

Discussion and decision

[35] I will decide this issue by reference to the 2006 Prison Rules, which Mr Collins said were more favourable to his submissions, and which are the relevant provisions for almost all the orders in question. Rule 94(5) states that no prisoner shall be subject to a governor's order made under Rule 94(1):

"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) provides:

"An authority granted by the Scottish Ministers under paragraph (5) shall have effect for the 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."

As illustrated by the decision in R v Soneji, the correct approach to the present question is to ask whether illegality was the intention of the legislature in the event of non-compliance with the time limits. In that case the House of Lords considered an appeal against a decision of the Court of Appeal to the effect that a confiscation order made outwith the statutory six month period after conviction, and without the judge having considered whether the necessary exceptional circumstances existed, was unlawful. Lord Steyn referred to the speech of Lord Hailsham of St Marylebone LC in London & Clydeside Estates Limited v Aberdeen District Council 1980 SC (HL) 1. Lord Hailsham mentioned cases "in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied" that the subject may safely ignore what has been done as having no legal consequence. At the other end of the spectrum were defects in procedure "so nugatory or trivial" that the authority concerned can safely proceed without remedial action. Traditional terminology such as "mandatory, directory, void, voidable, nullity, and so forth" was rejected. The court was not bound to fit the facts of any particular case into rigid legal categories. In this area of the supervisory jurisdiction the court was exercising "an inherently discretionary" jurisdiction where often it requires to assess "differences of degree which merge almost imperceptibly into differences of kind".

[36] Lord Steyn described this passage in Lord Hailsham's speech as "an important and influential dictum" which led to a more flexible approach of focusing intensely on the consequences of non-compliance, and posing the question, taking into account those consequences, whether Parliament intended the outcome to be total invalidity. "Inevitably one must be considering objectively what intention should be imputed to Parliament" (para 15).

[37] In the present proceedings two different, though related questions arise, namely, is the period covered by the late order valid, and, if not, does that invalidity infect subsequent ex facie timeous renewals? There is also the issue of the period between the expiry of the earlier order and the signing of the non-timeous order. Can a late order operate retrospectively to cover a period prior to its grant?

[38] Lord Steyn referred to Charles v The Judicial and Legal Service Commission. Giving the judgment of the Privy Council, Tipping J. of the New Zealand Court of Appeal observed that when a complaint is made about non-fulfilment of a time limit, the giving of relief will usually be discretionary. There can be no rigid classification and no "black and white a priori rules". It was relevant to consider issues such as whether the delays occurred in good faith; were not lengthy; were understandable; caused no material prejudice; and raised no questions of an unfair trial or fundamental human rights.

[39] In recent times the courts have moved from a focus on the precise wording of the relevant legislation to a consideration of what Parliament's intention would have been when regard is had to the whole facts and circumstances of the particular case. In Soneji Lord Steyn said that there should be an assessment of the place of the relevant procedural requirement in the scheme of the legislation and of the degree and seriousness of the non-compliance. Having reviewed the case law, at paragraph 23 his Lordship concluded that "the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can fairly be taken to have intended total invalidity".

[40] In deciding in favour of legality Lord Steyn was influenced by the public interest in not allowing a convicted offender to escape confiscation proceedings because of what were no more than bona fide errors in the judicial process. Furthermore the delay caused no significant prejudice to the accused person. I note that the test was not - did the confiscation order cause prejudice? The question was - did the failure to meet the time limit cause prejudice?

[41] In each example of a late order, as with all the others, the Scottish Ministers required to consider an application by a governor to extend a Rule 94(1) order or to renew an existing authorisation, all under Rules 94(5) and (6). When a governor makes such an application the Scottish Ministers come under a duty to consider it. Following the general approach adopted by Lord Rodger of Earlsferry in Soneji, one can ask; was it intended that that duty would cease after expiry of the specified time limit? Would this be the intention even where segregation was aimed at the prisoner's own safety? Suppose a taxi with a messenger containing requested additional information is held up in traffic, and as a result the documentation is received one hour late? Is there nonetheless a continuing duty on the Scottish Ministers to consider the governor's request? Would Parliament expect that, in such circumstances, the Scottish Ministers would still have power to deal with the application? Mr Collins' approach would require a negative answer, and the prisoner returned to the mainstream population, even if there he might be killed or seriously assaulted. In reality, should such a situation arise, the governor would issue another Rule 94(1) order and the petitioner would remain in segregation. Most people would consider it quite unreal that, if the Scottish Ministers decided to go ahead and grant the extension, both it and all subsequent entirely regular orders would be rendered unlawful.

[42] In my view the primary purpose of involving the Scottish Ministers in the management of segregated prisoners is to ensure an appropriate level of regular oversight of the decisions taken by the local prison management. Thus there must be an almost immediate reference to the Scottish Ministers if a prisoner is to be segregated for more than 72 hours, and thereafter monthly reviews, assuming that, in the meantime, the prisoner has not been returned to general association. On any view, even in respect of the late orders, that general scheme was followed in the present case. It would be possible to imagine examples of the kind of flagrant ignoring or defying of the statutory time limits spoken of by Lord Hailsham, but this is far from such a case. And there may well be cases where it is obvious that time is of the essence. All involved are expected to and should comply with the time limits. However, in the unusual circumstances of the present case where, essentially for reasons of his own safety, a prisoner was being authorised to spend a lengthy period under Rule 94 conditions, it is understandable that at times there was a certain slackness, though it should not be forgotten that the vast majority of orders were wholly regular.

[43] I am not prepared to reject Mr Ross's submission that the authorities granted the late orders in good faith, nor put them to their proof on that question. Until Mr Collins' responses to Mr Ross's submissions there was no suggestion of bad faith on the part of anyone. Both the petition and the petitioner's note of arguments proceed solely on the basis that the time limits were not met.

[44] In Soneji Lord Carswell said (para 65):

"The traditional consequence of finding that a provision was merely directory was that substantial performance would constitute a sufficient compliance with the statutory requirement."

When one looks at the whole circumstances in this case, I am of the view that there was substantial performance which was sufficient to avoid any finding of illegality. In reaching this opinion I have followed the guidance provided by Lord Carswell in paragraph 67 of his speech. There was compliance with the essential purpose of the relevant Rule 94 provisions, namely that the decisions of the local prison management to continue segregation were subjected to regular and independent scrutiny by the Scottish Ministers. Furthermore I am not persuaded that there was any material prejudice, or indeed any prejudice at all, flowing from the lateness of the signing of certain orders. In so far as Mr Collins pointed to alleged prejudice, it was on the basis that the segregation itself was prejudicial. However, as observed earlier, the question is not whether the orders were prejudicial, but whether any prejudice was caused by the delay. Furthermore, all of this is to be considered in the context of requests for authority where the principal reason was the petitioner's own safety.

[45] For these reasons, I consider that the challenge based on the late orders should be rejected. I am satisfied that Parliament would not have intended that the late orders should be invalid, nor that any of the time spent in segregation under subsequent timeous orders should be unlawful because of the said delays. If I am correct in the view that the lateness of certain orders did not invalidate either them or the subsequent timeous renewals, it is logical that they also operated to authorise the segregation occurring between the expiry of the previous order and the signing of the new order, all in terms of the applications and the orders themselves. For example, on the face of the late order granted on 13 April 2006 it allowed segregation from the moment of the expiry of the previous authorisation. It renewed authority for one month from the moment of the expiry of the earlier order, not for one month from the precise time when the order was signed. Thus I do not accept Mr Collins' fall back position that, whatever else, I should make a finding that the segregation was unlawful during the periods of delay, for example during the five hours of delay in respect of the order granted on 13 April 2006. If I am wrong in that, nonetheless in the overall context the periods involved were insignificant, now wholly academic, and in my view insufficient to justify any form of relief, especially when there is no claim that damages would fall to be awarded even had I upheld the alleged illegality of the 40 month period.

Article 3 of ECHR

Submissions on Article 3 for the petitioner

[46] I now turn to consider Mr Collins submission that the segregation of the petitioner amounted to inhuman or degrading treatment contrary to article 3 of ECHR. Both counsel proceeded upon the basis that the relevant principles are outlined by the Grand Chamber of the European Court of Human Rights in Ramirez Sanchez v France (2007) 45 EHRR 49 (the "Carlos the Jackal" case). Mr Collins relied upon the failures to comply with the time limits in the Prison Rules; the absence of a maximum time limit for segregation; and an alleged lack of a mechanism enabling a prisoner to mount a challenge to segregation before an independent judicial authority with the power to bring the segregation to an end. In the present case the petitioner applied for legal aid to raise judicial review proceedings in February 2007. That application was refused the following month. A review was refused in December 2007. In October 2009 Mr Shahid raised the present judicial review proceedings under emergency legal aid cover standing concern about a possible time bar. A full legal aid application was refused in November 2009 thus he was not able to bring matters to a substantive hearing. A review was refused in January 2010. A third legal aid application was made in April 2010 but not granted until June of that year. Mr Collins suggested that it was the grant of legal aid which prompted the respondents to end the petitioner's segregation. The submission was that until then the petitioner was unable to have the lawfulness of his continued segregation reviewed by an independent judicial authority with power to bring it to an end.

[47] The physical conditions of the petitioner's segregation are set out in the report by Professor Michael Corcorran of January 2011. In summary the space and layout of all of the cells in which the petitioner was detained were satisfactory, and all had integral sanitation, albeit not screened. However in no cell was the ventilation satisfactory. In three of the sixteen cells the electric lighting fell below required standards, and the level of daylight in all of the cells was poor and did not meet the requirements of Rule 18.2 of the 2006 European Prison Rules.

[48] The segregation regimes did not amount to complete sensory isolation, but they were nonetheless harsh and impoverished regimes (relative to mainstream), indistinguishable from that which could be imposed on a prisoner as a punishment. They were characterised by little time out of cell; a lack of constructive activity; an absence of association with other prisoners precluding normal human interaction; close supervision; and increased exposure to discretionary decision making by staff. Reference was made to the petitioner's affidavit dated 7 February 2011 and to a report by Professor J J McManus dated 30 September 2004. (That report was obtained in connection with another case.)

[49] It was submitted that the segregation regimes at the various prisons were broadly of the same nature and character and had the following features:

(i) the petitioner would be locked in his cell for at least 20 hours per day and up to 22 hours per day;

(ii) the petitioner would not be released from his cell at any time when another prisoner in the segregation unit was out of cell;

(iii) all the petitioner's meals were taken in his cell;

(iv) the petitioner would generally have access to one hour of exercise per day in the segregation unit yard (depending on the number of persons within the unit at any given time);

(v) the petitioner would often have access, for around an hour, to a basic cardiovascular gym located in the segregation unit;

(vi) the petitioner could receive visits, although following conviction in November 2006 he rarely had visitors;

(vii) the petitioner had daily access to prison telephones and usually made use of this for a few minutes;

(viii) the petitioner had daily access to a shower;

(ix) no work or other occupation was provided or permitted in cell;

(x) education courses were not generally available;

(xi) After March 2008 all cells had electric power and a television was provided. Prior to March 2008 the petitioner was allowed the use of a battery powered TV in his cell as a privilege;

(xii) the petitioner would infrequently attend court;

(xiii) the petitioner would infrequently have his hair cut;

(xiv) the petitioner would infrequently be visited by an Imam, but would not be permitted to attend religious services;

(xv) the petitioner received the prison wages and other privileges accorded to a prisoner segregated for punishment (about £5 per week). Daily newspapers were made available.

[50] The petitioner was segregated for around eleven months between October 2005 and September 2006, and for around forty five months from November 2006 to August 2010. Accordingly the total period of his segregation was about fifty six months in total. The principal purpose for which the petitioner was segregated was not his own conduct or dangerous, nor a risk of escape, but for his own protection. In Mr Collins' submission that objective could not justify Mr Shahid's segregation for such a lengthy period. Furthermore the evidence available to the respondents did not justify his segregation for the stated purpose for such a lengthy period. Reference was made to the intelligence material recovered under specification and to a report by Dr McManus dated December 2010. There was little if any progress in reintegrating the petitioner into mainstream conditions for more than four years. However during his trial he had been accommodated in mainstream without incident. I was informed that since August 2010 he has been returned to mainstream without major incident, notwithstanding that there has been no apparent change either in his attitudes or in the attitudes of the prison population towards him. The inference should be that he was returned to mainstream conditions because he was finally granted legal aid to pursue the current petition, and that he had been segregated far beyond any justifiable period.

[51] There is evidence that the segregation had an adverse effect on the petitioner's mental health. Reference was made to a report by Dr John Doyle of June 2010. Some of the symptoms mentioned are consistent with those recognised in academic literature as being the likely consequences of lengthy segregation. In conclusion it was submitted that the segregation of the petitioner for fifty six months was incompatible with his rights under article 3. It was not necessary to claim such incompatibility from the outset, nor to identify when the incompatibility occurred.

Submissions for the respondents on article 3

[52] Mr Ross submitted that segregation does not in itself amount to a breach of article 3. It is necessary to consider the whole circumstances, including the conditions and the segregation regime, its duration, and the purpose of the measures taken. The conditions and regime during the petitioner's period in segregation compare favourably with those applying in cases in which segregation has been found to be in breach of article 3, for example in Onoufriou v Cyprus. Whilst removed from association, the petitioner remained entitled to one hour of exercise each day. He was allowed to use the gym. He was able to shower regularly. He had regular meetings and conversed regularly with prison staff. He was entitled to use the telephone. He could watch television and listen to the radio. He had access to his legal advisers. He was entitled to visits by friends and family, including an inter prison visit from his brother. He had visits from an Imam and he attended Muslim classes. While prolonged segregation is undesirable, it is lawful provided that it is supported by good and sufficient reasons, cf Ramirez Sanchez where a complaint of a breach of article 3 in respect of a period of more than eight years in solitary confinement was rejected by the majority of the Grand Chamber. The principal reason for removing the petitioner from association was to protect him from serious risks to his own safety.

[53] In elaborating upon these matters Mr Ross observed that in Ramirez Sanchez the conditions and regime were similar to those of the petitioner, yet the Grand Chamber sanctioned segregation for over eight years. While minor points of detail could be discussed (for example the petitioner's attendance at Muslim prayer groups), the description of the conditions and regime provided at paragraph 39 of the petitioner's note of argument (and summarised above) was accepted as broadly accurate. The court requires to consider whether the measures taken were necessary and proportionate, and whether the pursuer's physical and mental condition were compatible with their continuation.

[54] The nature of the petitioner's crime is well known. It engendered considerable media and public interest, and a high level of feeling against Mr Shahid within the general prison population. The SPS owed a duty of care towards him. The principal reason for his segregation was his own safety, albeit he was initially segregated because of his assault upon a fellow prisoner. Had he accepted the offer of protection, segregation would not have been necessary. Mr Shahid told staff that he could look after himself and would deal with anyone whom he saw as a threat. Rule 94 allows segregation where it is desirable for the purpose of maintaining good order or discipline; protecting the interests of any prisoner; or ensuring the safety of other persons. The Rule 94 paperwork demonstrated that throughout the segregation one or more of those purposes was fulfilled. The prison service could not simply ignore the information that the petitioner would be at serious risk if placed in the mainstream prison population. In any event, a degree of latitude should be afforded in respect of what are essentially matters of judgment to be taken by those professionally responsible for the petitioner. The prison population contains unpredictable, volatile and dangerous people. As well as the petitioner, the governors were responsible for the safety and security of other prisoners and staff. They and their officers were best placed to judge what was necessary and justified. The intelligence records vouch the nature and degree of the perceived threat to the petitioner throughout his segregation. Unsuccessful attempts were made to reintegrate him into the mainstream population. The authorities never lost sight of the goal of reintegration. If over eight years in similar conditions was compatible with article 3 in Ramirez Sanchez, the same should apply in the present case.

[55] Cases such as Onoufriou and AB v Russia, Application no. 1439/06, can be distinguished on their facts. The report by Dr Doyle, which was based on an interview carried out on 31 May 2010, does not support any conclusion that the respondents should have considered that the petitioner was unfit to remain in segregation. The report is equivocal in its terms, records no diagnosis, and does not mention any suicidal intent. It contains no comparison in respect of his previous mental condition, nor recognition of the potential contribution from other stressors. In any event, Mr Shahid began the process of integration a short time after that interview. The petitioner's medical records show that his mental health was kept under regular review. For example reference can be made to Dr Baird's report of 20 June 2008, and to the review by a mental health nurse on 15 February 2010. These did not indicate any cause for concern.

[56] In summary Mr Ross submitted that the case advanced on behalf of the petitioner did not achieve the minimum level of severity required to justify a finding of a breach of article 3.

Submissions in response for the petitioner

[57] In response Mr Collins submitted that the Ramirez Sanchez case concerned a uniquely dangerous international terrorist, who remained in excellent health. The Court stated that the longer segregation continues, the more detailed and compelling the statement of reasons must become. Mr Collins expressed a concern that the reasons given in the Rule 94 paperwork were inadequate, and did not become more compelling as time marched on. The "struggle" to obtain full legal aid lasted for more than three years. Emergency legal aid was granted at the end of 2009 but only to raise the petition to avoid a possible time bar. The result was that, in the absence of legal aid, for a considerable period no effective action was taken to bring the matter to the attention of the court. Until the start of the first hearing in these proceedings the petitioner did not have access to an independent judicial authority, and by then the segregation was over. The Prisons Complaints Commissioner recommended an end to the segregation in 2008. It was a "considerable coincidence" that shortly after the grant of legal aid the petitioner was returned to mainstream conditions.

[58] It was incumbent on the respondents to find alternatives to segregation, if need be by rearranging their facilities. In the present case the 56 months of segregation was too long and could not be justified. It was accepted that the physical conditions were adequate, that the regime was only partial segregation, and that no serious mental illness had developed because of it. The main contention on behalf of the petitioner was that the segregation continued for too long. Rather than the reasons becoming more compelling as time went by, it appeared that the authorities had a "cut and paste" approach to the paperwork. Reintegration plans were mentioned, but never materialised. While it was accepted that the service had a duty of care to the petitioner, it was also under a duty not to breach article 3. Some alternative solution was required. Reference was made to Professor Coyle's reports which discuss the difficulties caused by the absence of special units, such as the celebrated facility previously operated at HMP Barlinnie. Some humane alternative to segregation was required.

[59] If one considers all the paperwork, it is clear that there was no adequate basis for such a lengthy period in segregation. Furthermore the real decisions were taken by the ECMDP. The intelligence regarding threats to the petitioner was intermittent. It did not prevent his return to mainstream in the second half of 2010. Why did this not happen years earlier? It was submitted that the obvious answer is that the only reason was the grant of legal aid in respect of the current proceedings. Reference was made to the reports prepared by Dr McManus and to the intelligence records. It was suggested that there was very little basis for the segregation during the period in 2005/06. The intelligence simply did not justify such a lengthy segregation. The petitioner was in mainstream for some weeks in Edinburgh during his trial without any apparent problem. The Rule 94 paperwork suggests that the authorities were undertaking no more than a "box ticking" exercise, based on no proper assessments. It appeared that on occasions the local governors were delegating their responsibilities to the ECMDP. For example at its meeting of 22 November 2006 the committee's decision was that the petitioner would stay in segregation for a year. The regime under Rule 94 was subverted. The same reasons/purposes were repeated in numerous applications by local management. The necessary procedural safeguards were sidelined, with management and the authorities simply "going through the motions." The promised long term management plan never arrived. An overly cautious approach was adopted. The petitioner's co-accused ended segregation sooner than the petitioner. It was only at HMP Edinburgh in the summer of 2010 that there was any genuine attempt to reintegrate the petitioner, and this was successful. A proper plan with concrete measures was formulated and implemented, even though threats to his safety were still being made. At that time there was no deferral of responsibility to the ECMDP. It was submitted that a rigorous examination of the circumstances demonstrates that there was no justification for four years eight months of segregation.

Evidence lodged on behalf of the petitioner

[60] At this stage it is appropriate to summarise some of the material lodged on behalf of the petitioner in support of the application for judicial review.

Affidavit of the petitioner

[61] The petitioner's affidavit outlines the general conditions in which he was held while in segregation in the various prisons. He describes his routine, which generally involved staying in bed until midday, when lunch was effectively his breakfast. During his trial he was a mainstream prisoner in HMP Edinburgh. There were no incidents between himself and other prisoners. After his conviction he was returned to segregation in HMP Barlinnie. Again he "endured the equivalent of a punishment regime." He felt stressed at being kept in segregation and experienced feelings of paranoia. He was transferred to HMP Edinburgh. He would have lunch/breakfast, then use the telephone, and try to have shower at around 3 pm. He used the exercise yard between 4 and 5 pm. There was a basic cardiovascular gym for use by those in the segregation unit. He was entitled to three visits each month. He was not allowed to pray in congregation during the month of Ramadan. He became worried about his mental health, with increased feelings of paranoia. In April 2007 he was transferred to HMP Perth. The daily regime was much as before. The cell had a television and he was permitted a playstation computer console which helped break up the boredom. He chose not to attend the cardiovascular gym.

[62] In July 2007 the petitioner was transferred to HMP Shotts. The daily regime continued as before. He was allowed access to recreation. On the first occasion there were no problems "but it was clear that other prisoners were unhappy at me being there." The affidavit continues

"The next time I attended recreation the other fifty three prisoners in the recreation room all fell silent. I asked the other prisoners what was wrong. They all then walked out the second door in the recreation room into the yard at the opposite side. I stayed in the recreation room and had a game of pool with myself for over an hour. The other prisoners remained in the yard throughout the recreation period. The prison staff even left me alone in the recreation room, unsupervised, for twenty minutes. There were no problems with violence. I was just in the room by myself.

The next day I met with Malcolm McLelland, a mid-level governor in HMP Shotts. He told me that I was lucky I did not die in the recreation room. He said that I was the target of death threats and that every prisoner in the recreation room had wanted to kill me. I thought this was complete rubbish as the opportunity was clearly there for them to do so, particularly when I was left unsupervised. They did not take advantage of this opportunity. The threats were just not credible. The next time I was due to attend recreation, staff came from the National Induction Centre to take me to the recreation room. On our way to the recreation room we were stopped by other members of staff who said that I was not permitted to attend recreation due to threats made against me. I was walked back to my cell. I did not get to attend recreation again. I had no access to the Imam or classes. I felt really frustrated during my time in Shotts. I did not think the staff really tried their best to integrate me into mainstream conditions. It was all a front to try and find more evidence to justify my segregation. I felt that everything they did was with a view to searching for ways to keep me in segregation. I don't think their attempts were credible in any way. The situation in the recreation room with the silent protest is evidence of this. I refused to leave the recreation room. Even the staff left the room for a period. If anybody wanted to take a shot at me then they had the perfect opportunity. Nobody did. Therefore any concerns about my safety seemed entirely false. When I first was asked about attending recreation with mainstream prisoners I said from the start that I thought they were simply trying to put me in a situation where something would happen that would justify their reasons for segregating me. I was told that I was being paranoid and that, as long as there were no physical altercations, then there would be no problems with me attending recreation. When, after attending recreation with no problems, I was then told that I could no longer attend because of fears for my safety, I realised that the prison authorities were doing exactly what I had suspected them of. I was not being paranoid. What I was scared of was in fact reality. As a result of this I became even less trusting of any proposed integration plans. I felt that integration was sometimes only talked about as a way of putting me into a situation which would have an outcome that justified my continued removal from association."

[63] In January 2008 the petitioner was transferred to the segregation unit at Barlinnie. He remained there until March 2009. He was provided with a television and in September 2008 the cardiovascular gym was refurbished. A bench press machine and weights were installed. The petitioner began using the gym on a daily basis. Again he would wake at around midday and would usually go to the gym at around 2 pm. He would use the telephone at about 3 pm and was permitted to shower at 4 pm. At 5 pm the petitioner was locked up until the following day. The affidavit continues:

"Any time I was required to leave my cell to attend a visit with my solicitor or to see the prison doctor, the whole prison was supposed to be put on lock down. This meant that there was intended to be no movement of other prisoners within the prison. I would be escorted by four prison officers to the visits area or to the healthcare centre. However, I don't believe that these measures were actually enforced. By way of example, in February 2008 another prisoner had been walking in a corridor at the same time as me and he shouted racial abuse. I went to attack him, but he ran away. I referred to this later that month when a further application was made to extend my segregation. I was trying to point out that, even whilst in segregation, I was not exempt from abuse, therefore there was no reason not to return me to mainstream conditions."

[64] After complaints by the petitioner he was provided with halal meat twice a day. In February 2008 the petitioner was prescribed anti-depressant medication, and beta-blockers having developed agoraphobia. He stopped going to exercise so often. "I could not handle being in a large open space." He did however continue to use the gym. He stopped visits from his family and friends as he did not wish them to see him in a weak mental state. "I felt really withdrawn and helpless." He complained about the adverse effects which he believed prolonged segregation was having on his mental health. He suggested the possibility of being housed along with his co-accused. During this period of his segregation in Barlinnie he heard that both of his co-accused were being detained in mainstream conditions in HMP Dumfries. "I raised the point with the prison authorities that they had not encountered any problems in mainstream conditions and that, equally, the same could apply to me if I was transferred out of segregation."

[65] In March 2009 the petitioner was transferred to HMP Glenochil. The conditions and the regime were much as before. At Glenochil the petitioner was allowed to attend Muslim classes once a week, which were then increased to twice a week. "The classes I attended were made up of all races. White prisoners would also attend. There were usually about twenty of us in a class. The class was made up of mainstream and segregated prisoners. There were never any incidents between me and other prisoners." The affidavit continues: "The staff in the segregation unit at HMP Glenochil revelled in the fact that we were in segregation and gave us nothing. They made things difficult. They were very hostile towards me. They treated me and the other prisoners in the unit badly."

[66] In September the petitioner was transferred to HMP Shotts.

"By this time I was beginning to hear voices and I continued to worry about my mental health. I would hear voices. Sometimes the voices would tell me to change channels on the television. I would feel a presence in my cell. I was not sleeping. I asked to be seen by a psychiatrist and was seen by the prison appointed psychiatrist. I told them I was hearing voices. I was told all this was normal. It made me feel as if I was going mad and that the problems I had were not in fact problems at all. I refused to see the psychiatrist there again after this. I was still suffering badly from agoraphobia. I would try to avoid having to leave the segregation unit if at all possible. I suffered panic attacks when I did. I only left to attend visits with my solicitor. I knew my only way of getting out of segregation was to win my appeal and so I had to try and fight through my agoraphobia to attend visits with my solicitors....There was still talk of me going to mainstream but I had, by this point, lost all faith in what I was being told."

[67] In June 2010 the petitioner was transferred to HMP Edinburgh. A couple of days before he was moved he was informed that he had been granted legal aid to challenge his segregation. He was told that he would be going into a mainstream hall. He accused the officers of doing this simply because he now had legal aid and his case would be progressing.

"I was transferred to mainstream conditions on 13 August 2010... When I was in mainstream conditions I was seen by Governor Dickie every week to discuss how I was settling in. After four weeks in mainstream conditions he said that such meetings were no longer necessary and that he was happy with my integration into mainstream. I was also told by him that he had previously received intelligence stating that my safety was at risk. He said he had chosen to ignore that and put me in mainstream conditions. At this point I realised that the prison really didn't care about my safety. They had been saying for years that they could not put me in mainstream due to fears for my safety. Yet now, even in the face of intelligence, they were taking me out of segregation. The same justification for keeping me in segregation no longer appeared to be a concern for them."

Professor Andrew Coyle's report of April 2010

[68] Professor Coyle is a Professor of Prison Studies in the School of Law, King's College, University of London. He was asked to provide a report on the management of prisoners in the Scottish Prison Service, particularly in respect of the use of Rule 94, and specifically with reference to the petitioner's case. He observes that the Prison Rules "reinforce the principle that in Scotland the experience of imprisonment is intended to be as positive as possible for each individual sent there by the court. Prison in Scotland is not intended to be a place of isolation and idleness". He notes that Rule 94 places no restriction on Scottish Ministers as to the number of times that they may renew the removal from association. It is silent as to the cumulative length of time that a prisoner may be held under the Rule. It also makes no provision for any appeal against a decision by Scottish Ministers to hold a prisoner under Rule 94 conditions. "International and regional human rights standards recommend the abolition of solitary confinement as a punishment....Detention under Prison Rule 94 is not a disciplinary punishment. However, given the restrictions on the use of solitary confinement as a disciplinary punishment, it would be hard to argue that solitary confinement for any other reasons should be imposed in other than 'exceptional cases' and for periods 'which shall be as short as possible'". The Second General Report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) states:

"The principle of proportionality requires that a balance be struck between the requirements of the case and the application of a solitary confinement regime, which is a step that can have very harmful consequences for the person concerned. Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible."

In a subsequent report the CPT stresses that "all forms of solitary confinement without appropriate mental and physical stimulation are likely, in the long term, to have damaging effects, resulting in the deterioration of mental faculties and social ability."

[69] Professor Coyle makes reference to a recommendation of the Committee of Ministers of the Council of Europe in 1982 regarding the custody and treatment of dangerous prisoners. "The explanatory memorandum which forms part of this recommendation emphasises the need to treat these prisoners in a decent and humane manner. It does not envisage personal isolation; instead it strongly recommends that they should be dealt with in small groups." Professor Coyle compares the Scottish Rules with those applying in England and Wales which recommend that in some prisons consideration should be given to identifying a particular wing, unit or landing as a high supervision unit to accommodate prisoners who require more supervision than those on the main wings. This is to be run "as normal location accommodation but with increased officer supervision, lower numbers of prisoners on association and more structured periods of activity." The close supervision centres provided for in Rule 46 are for problematic or disruptive prisoners who are likely to be unsuitable for mainstream accommodation for extended periods. The centres are used as an alternative to long term segregation under Rule 45.

[70] Professor Coyle discusses the Scottish experience with small units. The first such unit had been the Barlinnie Special Unit opened in 1973. The second unit was built within the main prison at Shotts, with another smaller unit in Perth prison. Along with a ten cell unit at Peterhead there was a range of locations in which prisoners requiring long term close supervision could be held in small groups with as full a range of activities as possible. A 1992 SPS commissioned evaluation of the units at Shotts and Barlinnie was positive in its terms. Nonetheless the Barlinnie Special Unit was closed in January 1995. In 1999, following a reduction in its budget, SPS mothballed the Peterhead unit and ordered the incorporation of the Shotts unit into the main prison. The Shotts unit closed in January 2003.

[71] In his conclusions Professor Coyle comments that the prison service has left itself with few options for managing the very small number of prisoners who, for whatever reason, cannot be managed in the mainstream population. On the basis of the paperwork which he has seen, he comments:

"It is clear that throughout this extended period prison staff in the various segregation units have done everything in their power to treat Mr Shahid as decently as they can within the very restrictive provisions of Rule 94 and in general terms he has not been abusive to or difficult with staff. The root of the problem is that, in terms of how it manages long term prisoners, the Scottish Prison Service has removed any meaningful middle way between full integration and solitary confinement.....The Scottish Prison Service is to be congratulated on its determination to ensure that wherever possible long term prisoners should serve their sentences in the 'mainstream'. However, it must also recognise, as does the prison service of England and Wales, that a very small number of prisoners are unlikely to be able to do so. It is not sufficient that these individuals should be held in isolation for an indeterminate period, even if this segregation is renewed on a monthly basis. Mr Shahid is still in the early stages of what will be a very long period of imprisonment. It seems quite clear that he will not be able to live in mainstream accommodation for a considerable further period....In my opinion, continuing to hold Mr Shahid under Rule 94 conditions after he has been in prison for over five years, without any real prospect of this coming to an end, breaches (the principle of proportionality) and at some point a court may conclude that such treatment amounts to inhuman and degrading treatment."

[72] In January 2011 Professor Coyle submitted a supplementary report. He had been asked to comment on

• The absence of an alternative to mainstream or segregation within the SPS.
• The manner in which Imran Shahid has been dealt with by the SPS.

In respect of the first matter he states:

"In most prison systems there are likely to be a number of prisoners who will be unable for a variety of reasons to serve their sentences in the 'mainstream'. This may be because they are at risk of attack by other prisoners because, for example, of the nature of the offences for which they have been convicted.....There may also be a small number of prisoners who cannot be kept in 'mainstream' because they are a threat to other prisoners or because their behaviour is likely to threaten the good order of the prison....Removal from association under Rule 94 is not a long term solution for the management of difficult prisoners."

Again reference is made to the operation of close supervision centres in England and Wales, and the previous Scottish units operated at Barlinnie, Perth, Peterhead and Shotts prisons. Professor Coyle continues:

"Since the closure of the last of the small units in 1999 it appears that the only option available to prison governors and the ECMDP for prisoners held under long term Rule 94 conditions is to seek to encourage their return to the 'mainstream'. For a small number of these prisoners this is an aspiration which is unlikely to be realised other than for very short periods. To date, Imran Shahid is one of these prisoners. The decision not to provide an alternative, for example, in the form of small units, has been a conscious decision on the part of the SPS. This is a decision which is not best practice and which undoubtedly leaves the service open to legal challenge."

[73] In relation to the manner in which the petitioner has been dealt with by the SPS the Professor notes that a recurring comment in much of the paperwork is:

"that Mr Shahid should continue to be held under Rule 94 conditions 'until a long term management plan can be put in place.' Years later there does not seem to be any evidence of such a plan, other than intermittent attempts to return him to 'mainstream'. Reference is then made to certain papers concerning a complaint which the petitioner made to the Scottish Public Services Ombudsman about the way in which the Scottish Prison Complaints Commissioner had dealt with his case. The SPSO had considered that it was "clear that the ECMDP were not regularly reviewing (the petitioner's) case." He recommended that the SPCC go back to the SPS and urgently establish if there is a long term management plan and/or reintegration plan in place for Mr Shahid and provide evidence of the plan to his office."

These comments were contained in the SPSO's report dated 21 April 2010. The SPSO stressed that:

"One principle is that segregation is not an end in itself...while different prisoners will require to be segregated for different timescales, the temporary status must continually be emphasised."

Professor Coyle offers the following conclusion:

"It is clear from the evidence available that the management of Imran Shahid presents a major problem for the SPS and is likely to continue to do so for many years. His detention over the last five years under Rule 94 conditions has been justified on the basis that it is necessary 'until a long term management plan can be put in place.' This is not acceptable and is a consequence of previous SPS decisions about the closure of small units."

Report by Dr J J McManus

[74] Dr McManus provided a report dated 21 December 2010. (An earlier report prepared by the same author in connection with another case was produced - however I shall concentrate on the latter document). Dr McManus is currently a member of the CPT elected in respect of the United Kingdom. He was previously Professor of Criminal Justice at Glasgow Caledonian University, Chair of the Parole Board for Scotland, Prisons Complaint Commissioner for Scotland, and has specialised in prisons law and practice since 1980. He was asked to comment on whether the interference with the prisoner's article 8 rights was both in accordance with the law and no more than was necessary to achieve a legitimate aim. I pause to observe that this expressly raises questions of law. Dr McManus explains that he examined "both the form and the substance of the decision making process." He comments:

"Scottish prison authorities have always demonstrated a keen awareness of the potential damage which keeping a prisoner in isolation can inflict on both the physical and mental health of the prisoner. This is reflected in Scotland having the shortest maximum period of cellular confinement as a disciplinary punishment in Europe (three days) and in the provisions in the Rules and Management Circulars relating to administrative segregation. Thus the governor is restricted to a maximum power of three days administrative segregation and must seek written approval from Scottish Ministers to extend segregation to a maximum of one month, with further extensions also lasting only one month."

Dr McManus then considers some of the paperwork relating to the petitioner's segregation. He suggests that there is no power in the Prison Rules for authorisation for segregation to be granted retrospectively "and it seems logically impossible to extend something which has already ceased to exist." Much of his commentary impinges upon the issues which I have already discussed in respect of the first ground of challenge. He observes that in much of the paperwork concerning applications for extension or renewal of segregation a standard form of words is used. Dr McManus makes various comments and conclusions on a number of issues of fact and/or law based upon his consideration of some of the documentation. For example:

"On the basis of the constantly repeated narratives in the renewal applications, it is not at all clear that there was any reassessment of the continued need for total removal from association and, from the ending of the Rule before transfer to HM Prison Edinburgh, it is clear that it was thought that Mr Shahid could survive on ordinary location in another prison....It is clear that there was little attempt to meet the particular problems which he presented and personalise a regime for him. Accordingly it cannot be said that the full rigours of the Rule 80 regime were necessary and proportionate to the risk posed by Mr Shahid nor that proper consideration was given to this in each review."

[75] In relation to a subsequent period of segregation Dr McManus comments:

"It appears that the establishment has given up its role to the ECMDP since the case conference records that Mr Shahid is managed by it and makes decisions about his location...the introduction of the ECMDP into the picture seems to have resulted in local staff and headquarter staff failing to fulfil their statutory duties."

This becomes a constant theme of the report. No doubt because of the remit given to him, the author offers findings in fact and law which are within the sole jurisdiction of the court. It is the function of an expert witness to assist the court by an application of non-legal specialist knowledge to agreed or assumed facts, not to survey some of the available material and offer the expert's own view on issues of fact and law. No doubt there will be occasions when it is next to impossible for an expert, who is nonetheless properly carrying out his function, to avoid some overlap with the question or questions before the court, but it should be done with restraint allied to an awareness that the expert may be privy to only an incomplete or partial account of the relevant facts and circumstances.

[76] When it comes to Dr McManus's general conclusions it is fair to say that, as stated, they are couched in more guarded language. For example, with emphasis added:

"Thus it may be questioned if all the restrictions imposed on Mr Shahid were necessary and proportionate....decisions of Scottish Ministers to grant extensions of segregation appear to give no reasons for the decisions and it is not clear how, if at all, they might be challenged short of judicial review....The role of the ECMDP seems unclear. Its existence is used in several decision making papers as a reason why those charged by the Rules with making the decision, the governor or the Scottish Ministers, fail to do so. The legal status and the operational practices of the committee need to be examined for compliance with the principles of legality, accountability, transparency, necessity and proportionality".

Professor Corcoran's report

[77] A report has been provided by Professor Michael Corcoran. It is headed "Report on the Environment of Cells Occupied by Imran Shahid in Segregation Units in Five Scottish Prisons" and is dated January 2010. The sections of the report on space standards is based on material prepared by Professor Thomas Markus (Emeritus Professor, University of Strathclyde) in connection with a number of other legal actions in which he and Professor Corcoran have collaborated. Professor Corcoran is the principle of Corcoran Consultancy Limited and is Emeritus Professor of Building Services Design, Department of Architecture and Building Science, University of Strathclyde. He is a chartered engineer and member of the Chartered Institution of Building Services Engineers. The report deals with issues such as recommended floor space and sanitation, and an assessment of the facilities provided to the petitioner at Barlinnie, Edinburgh, Glenochil, Perth and Shotts. On that aspect his conclusions are:

"Although some of the cells surveyed were close to the minimum floor area standards set for prison cells intended for single occupancy, none of the cells could be regarded as unsatisfactory in this respect. All cells had adequate space for the use of the minimal furniture provided. Less than satisfactory was the sanitation arrangements. With the exception of cell 5 in the segregation unit at HM Prison Shotts at that time, all cells had integral sanitation. However, none of the cells had WC cubicles. In effect, prisoners ... were living in a toilet. This is not just an aesthetic consideration; it has implications for the effectiveness of ventilation to remove odours."

[78] Professor Corcoran then considers electric lighting and day lighting. His conclusions are:

"The electric lighting in the cells in the segregation units in HM Prisons Barlinnie, Edinburgh and Perth were satisfactory as there was adequate general illumination in these cells and sufficient light to read for extended periods at a table position. The electric lighting in the cells in the segregation unit in HM Prison Shotts was not satisfactory. Levels of general illumination and, more particularly, at positions where a prisoner might be reading are well below recommended levels. If these cells were in prisons in England they would not be certified for occupancy. In none of the cells surveyed can the day lighting be described as satisfactory. Small window dimensions, security measures and obstructions presented by surroundings combined to result in day lighting levels that are only a fraction of recommended levels. For adequate illumination, all the cells rely on electric lighting for all or almost all occupied day time hours. The requirement of Rule 18.2 of the Council of Europe's European Prison Rules Rec (12006) 2 is therefore not met."

[79] As to ventilation Professor Corcoran concludes:

"The sanitary arrangements in the cells in the segregation units surveyed were such that prisoners were effectively living in a toilet. The natural ventilation arrangements in all cells fell far short of the accepted standard. It should be noted that these standards are for habitable rooms, not inhabited toilets. In all cells with integral sanitation (i.e. all except cell 5 in the segregation unit at HM Prison Shotts) natural ventilation was supplemented by fan-assisted extract ventilation. However, in no case was the sanitary provision within an enclosed cubicle. This limits the effectiveness of the ventilation system."

Report by Dr John Doyle, June 2010

[80] Dr Doyle is a principal psychologist. He has over 16 years experience working in adult mental health in the National Health Service. For some years he was Associate Lecturer in Counselling Psychology at Glasgow Caledonian University. He was instructed by the petitioner's agents to carry out an assessment in relation to any psychological problems or foreseeable psychological problems that the petitioner may suffer due to being mostly in segregation in prison since October 2005. His assessment was based on a structured interview and administration of psychological tests to gauge levels of depression, anxiety, and suicidal thoughts.

[81] His summary of the prison notes is as follows:

"From his prison records I note on 23 November 05 trazadone was prescribed for anxiety and that on 17 November 2005 the anti-depressant fluoxetine was also prescribed. On 7 September 2006 it was entered by M Mullin (mental health nurse) that there was no evidence of depression, his appetite and sleep were good, his concentration was good, and there was no evidence of perceptual disturbance or suicidal ideation. On 3 January 2007 he was referred to a psychologist, but it was noted that Mr Shahid was eating and sleeping well with no suicidal ideation. On 5 July 2007 an entry by Dr Douglas, psychologist, stated there was no evidence of mental illness. On 26 February 2008 a mental health referral form was completed; 28 February 2008 he was suffering from anxiety; 21 March 2008 he was agitated, depressed, anxious, had sleep problems, had concentration problems, and suffered panic attacks; 29 October 2008 he complained of agoraphobic type symptoms, but there were no psychotic symptoms or suicidal ideation.

On 4 April 2009 he was coping well in the segregation unit and his behaviour was appropriate; 17 May 2009 his mood and behaviour had settled and he had been to a Muslim group; 12 July 2009 he spoke loudly and had little insight into his intimidating and often aggressive behaviour. On 26 January 2010 he was hearing voices in his head and does not like large crowds. He was not distressed at interview; 1 January 2010 he was hearing voices that told him to close the window or change the channel on his tv. He is not scared of the voices. He thinks he is losing his mind; 11 February 2010 there is no overt concern with regard to his mental health; 15 February 2010 he is lacking motivation and has poor concentration but there is no serious mental health problem and Mr Shahid agreed.

Entries on the following dates indicate Mr Shahid was not a risk to himself; 13 August 03, HMP Low Moss; 25 November 2003, HMP Barlinnie; 27 February 2003, HMP Barlinnie; 6 October 2005, HMP Barlinnie; 9 November 2006, HMP Barlinnie; 2 April 2007, HMP Edinburgh; 18 September 2006, HMP Edinburgh; 2 April 2007, HMP Perth; 2 July 2009, HMP Shotts; 18 August 2009, HMP Glenochil; 9 September 2009, HMP Shotts."

[82] Dr Doyle records the petitioner's presentation at his interview which took place at HMP Shotts on 31 May 2010 and lasted for one hour. His behaviour was polite and appropriate throughout. He presented as a well built man who made poor eye contact and spoke rather lethargically with regard to his present situation. His mood appeared to be down but there were no cognitive deficits. He answered all questions appropriately and there was no indication of any psychotic illness. The report records the petitioner's statements during the interview, including his hearing of voices telling him to "switch the television channels" or "keep the tv off." He said that he felt he was being watched all the time and feels there is a "presence", although he does not know what or who this presence is. He does not like open spaces and when out of the segregation unit he experienced symptoms of anxiety. He was angry at "what they have done to me." His confidence had been affected. He feels scared at times and has a feeling of "impending doom". He can now only manage about forty minutes on the running machine. He has trouble with his concentration and everything is "dull". He cannot focus on anything. He had started to pull his hair out. He thought he was being "punished" by being kept in the segregation unit. He wanted to be integrated into the mainstream population.

[83] Dr Doyle carried out psychometric assessments. His report surveys some of the literature on the potential effects of solitary confinement. It confirms that "large groups of those subjected to solitary confinement will suffer detrimental health effects." Solitary confinement alone, even in the absence of physical brutality or unhygienic conditions, can produce emotional damage and decline in mental functioning.

[84] Dr Doyle's conclusions were are as follows:

"1. Mr Shahid's scores on the Beck Depression Inventory (BDI II) indicated problems with mood. He appeared to me to be lacking in motivation, lethargic at interview, and complained of concentration problems. My impression was that his demeanour was rather down and certainly his eye contact was minimal. When speaking at times it appeared he was not sharp and had to think about his answers.

2. I was of the opinion that he had not come to terms with or fully adapted to his situation. There certainly appears to be an issue with a sense of unfairness. He perceives he is being 'punished' by being in segregation. During our interview I had the impression of an individual who was repressing his anger and, in fact, he said he was angry and irritable most of the time.

3. His scores in the Beck Anxiety Inventory (BAI) also indicate problems in this area. His anxiety is mainly to do with going outwith the segregation unit. He reported to experiencing what appears to be the fight or flight response i.e. palpitations, sweating, shortness of breath, etc. This had induced a reluctance to go outwith the confines of his present environment resulting in him becoming increasingly insular.

4. As far as his hearing voices is concerned, I am of the opinion that this is not a full blown case of psychosis but a reaction to his environment. However it may be appropriate to have a psychiatric assessment to assess any psychotic symptoms.

5. When one looks at the literature there appear to be a substantial number of studies which indicate that long term solitary confinement can have a detrimental effect on prisoners both psychologically and physically. Mr Shahid has indicated that he is suffering some of the symptoms described in these studies, e.g. nervousness, confusion, irrational anger, lethargy, sleeping difficulties, his fear of his mental health getting worse, and agoraphobic type symptoms.

6. Mr Shahid also indicated that he has lost confidence and therefore does not wish to meet people he knew before he was imprisoned. He said he does not want people to 'see him like this'. Again this is in line with some of the studies where the individual's sense of self and self-esteem has been affected. The individual can become inhibited, dull, and lack self insight. It is not unreasonable to assume that, as Mr Shahid had not complained of his current symptoms before being in segregation, then it is segregation that has attributed to his current psychological distress.

7. Finally, I am of the opinion that, although the prison authorities have a duty to keep safety and order in the prison there could be an issue about the length of time that Mr Shahid has been in segregation. He has been in segregation for the best part of five years, which is a considerable amount of time. Research indicates that, the longer the individual is in solitary confinement, the more serious and damaging the effects can be."

Article 3 case law, and in particular the decision in Ramirez Sanchez

[85] Both counsel agreed that the relevant principles are laid down in the decision in Ramirez Sanchez. A majority of twelve judges of the Grand Chamber rejected an alleged violation of article 3 in respect of over eight years segregation in solitary confinement. It was noted that article 3 enshrines one of the most fundamental values of democratic societies. "Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment." There can be no exceptions or derogations, irrespective of the conduct of the person concerned. Ill-treatment must attain (para 117)

"a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects....In assessing the evidence on which to base the decision whether there has been a violation of article 3, the Court adopts the standard of 'proof beyond reasonable doubt.' However, such proof may follow from the co-existence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact."

[86] Treatment can be inhuman because it was premeditated, was applied for hours at a stretch, and caused bodily injury or intense physical or mental suffering. Degrading treatment can be such as arouses feelings of fear, anguish or inferiority capable of humiliating and debasing the victim.

"...article 3 requires the state to ensure that prisoners are detained in conditions that are compatible with respect for their human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured" (para 119).

Measures taken must be necessary to attain the legitimate aim pursued, and account is to be taken of the cumulative effects of those conditions, as well as the specific allegations made by the applicant.

[87] In Ramirez Sanchez, as in the present case, the applicant's allegations focussed on the length of time spent in solitary confinement. The Grand Chamber referred to case law which vouches that prolonged solitary confinement is undesirable, especially where the person is detained on remand. Furthermore, in assessing whether such a measure may fall within the ambit of article 3 "regard must be had to the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned." Complete sensory isolation can destroy the personality and cannot be justified by the requirements of security. On the other hand: "The prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment." In Ilaşcu v Moldova and Russia (2005) 40 EHRR 46, when upholding a complaint under article 3, the Court stated (para 438):

"As regard the applicant's conditions of detention while on death row, the Court notes that Mr Ilaşcu was detained for eight years, from 1993 until his release in May 2001, in very strict isolation: he had no contact with other prisoners, no news from the outside - since he was not permitted to send or receive mail - and no right to contact his lawyer or receive regular visits from his family. His cell was unheated, even in severe winter conditions, and had no natural light source or ventilation. The evidence shows that Mr Ilaşcu was also deprived of food as a punishment and that in any event, given the restrictions on receiving parcels, even the food he received from outside was often unfit for consumption. The applicant could take showers only very rarely, often having to wait several months between one and the next. On this subject the court refers to the conclusions in the report produced by the CPT following its visit to Transdniestria in 2000..., in which it described isolation for so many years as indefensible.

The applicant's conditions of detention had deleterious effects on his health, which deteriorated in the course of the many years he spent in prison. Thus, he did not receive proper care, having been deprived of regular medical examinations and treatment...and dietetically appropriate meals. In addition, owing to the restrictions on receiving parcels, he could not be sent medicines and food to improve his health."

[88] In Ramirez Sanchez the Grand Chamber considered the conditions in which the applicant was held, including the physical conditions and the nature of his solitary confinement. At para 136 it stated that in view of the length of the solitary confinement:

"a rigorous examination is called for by the Court to determine whether it was justified, whether the measures taken were necessary and proportionate compared to the available alternatives, what safeguards were afforded the applicant and what measures were taken by the authorities to ensure that the applicant's physical and mental condition was compatible with his continued solitary confinement."

The reasons for the quarterly renewals of the measures were the applicant's dangerousness, the need to preserve order and security in the prison, and the risk of his escaping from a prison in which the security measures were less extensive than in a high security prison. It was noted that "regrettably" there was no upper limit on the duration of solitary confinement. However a prisoner's segregation did not in itself amount to inhuman treatment, and it was acknowledged that many states use stringent security measures for dangerous prisoners.

"However, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner's circumstances, situation or behaviour. The statement of reasons will need to be increasingly detailed and compelling the more time goes by. Furthermore, such measures, which are a form of 'imprisonment within the prison', should be resorted to only exceptionally and after every precaution has been taken...A system of regular monitoring of the prisoner's physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement" (para 139).

[89] The Court noted that the applicant received very regular visits from doctors. None of them expressly stated that his physical or mental health had been affected. None expressly requested a psychiatric report. The applicant had not shown that his prolonged solitary confinement had led to any deterioration in his health. The Court nevertheless emphasised (para 145)

"that solitary confinement, even in cases entailing only relative isolation, cannot be imposed on a prisoner indefinitely. Moreover it is essential that the prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement. In the instant case, that only became possible in July 2003."

[90] The Court returned to that matter when examining the complaint made under article 13. The Court also observed (para 146) that:

"It would be desirable for alternative solutions to solitary confinement to be sought for persons considered dangerous and for whom detention in an ordinary prison under the ordinary regime is considered inappropriate."

The Court then considered some of the particular features of the case, including that the government's concerns that the applicant might use communications either inside the prison or on the outside to re-establish contact with members of his terrorist cell, to seek to proselytise other prisoners or to prepare an escape, "cannot be said to have been without basis or unreasonable."

[91] The majority of the Grand Chamber formulated its overall view on article 3 as follows:

"The Court shares the CPT's concerns about the possible long-term effects of the applicant's isolation. It nevertheless considers that, having regard to the physical conditions of the applicant's detention, the fact that his isolation is 'relative', the authorities' willingness to hold him under the ordinary regime, his character and the danger he poses, the conditions in which the applicant was being held during the period under consideration have not reached the minimum level of severity necessary to constitute inhuman or degrading treatment within the meaning of article 3 of the Convention. Despite the very special circumstances obtaining in the present case, the Court is concerned by the particularly lengthy period the applicant has spent in solitary confinement and has duly noted that since January 5^th 2006 he has been held under the ordinary prison regime, a situation which, in the court's view, should not in principle be changed in the future. Overall, having regard to all the foregoing considerations, it finds that there has been no violation of article 3 of the Convention" (para 150).

[92] The dissenting opinion of five judges in Ramirez Sanchez demonstrates that whether a given set of facts amounts to a violation of article 3 is a subjective matter of personal impression or opinion. Amongst other things the minority said:

"In the present case, the orders successively prolonging the applicant's solitary confinement did not set out any real reasons. They are statements in general terms that are often reproduced from one document to the next and which are devoid of the genuine reasons and objective evidence required by the legislation. In addition, they are contradicted by the factual reality, as the applicant was held under the ordinary prison regime for a year and a half (between October 2002 and March 2004) and again from January 2006 onwards without any incidents being reported."

[93] Mr Collins and Mr Ross both referred to Onoufriou v Cyprus in which a judgment upholding a complaint of violation of article 3 was delivered on 7 January 2010. The applicant was held in solitary confinement for a period of 47 days. The Court concluded that this measure was imposed for reasons which remained unclear and which were never explained to the prisoner. There was no evidence that the authorities assessed all the relevant factors in his case before placing him in solitary confinement. Any person placed in solitary confinement should be informed in writing of the reasons, and he should have an opportunity to express his view, with a possibility of appeal to authorities outside the prison should he wish to challenge decisions to place him in solitary confinement or to extend its duration. The confinement should be re-examined at regular intervals and should cease when no longer merited. In Onoufrio (para 73) the Court observed:

"It is clear that the applicant's detention in solitary confinement was not attended by any of the procedural safeguards required in order to protect against the arbitrary application of excessively restrictive conditions of detention, regardless of the duration of the confinement."

[94] The Court also criticised the "very restrictive regime of detention" for the 47 days of confinement.

"It is clear from the entries in the log book that the applicant's cell had neither sanitary facilities nor running water. Accordingly, the applicant was required to ask the prison guards to allow him to go to the toilet. The Court's examination of the prison log book shows that on a number of occasions the applicant only used the toilet once in the course of the day, which would appear to confirm his assertion that during certain periods of his detention he had to use water bottles and nylon bags for his needs. The Court considers that such a practice was humiliating" (para 75).

The applicant's cell was cold and damp. Detainees could not leave their cells nor benefit from outdoor exercise. While the applicant visited court on seven occasions, for the remainder of his confinement he rarely left his cell. Most days the cell was opened only for a brief period to allow him to use the shower or toilet, or to collect his food. The applicant was served food at irregular intervals, sometimes receiving only one meal per day. Clearly the regime was very different from the conditions of the present petitioner's segregation.

[95] In AB v Russia, decided on 14 October 2010, a Chamber of the Court upheld a complaint of a violation of article 3, again in the context of detention in solitary confinement. The applicant spent at least three years in solitary confinement. He was suspected of a non-violent economic crime and had no record of disorderly conduct while in the remand prison. The government did not claim that the applicant was in any manner dangerous. The only reason given was a desire to protect him from "a vague risk to his life and limb." The applicant was not promptly informed of the reasons for his transfer to solitary confinement. The prison authorities did not explain what danger he would have faced if kept in a shared cell.

"The Court is deeply concerned by the fact that a person may be placed in an individual cell designed for prisoners convicted to life imprisonment without being offered at the very least an explanation for such isolation. The situation is even more disquieting considering that by 29 October 2004 the applicant had not been tried by a court and therefore was to be presumed innocent.

The Court reiterates in this connection that, in order to avoid any risk of arbitrariness, substantive reasons must be given when a protracted period of solitary confinement is extended. The decision should thus make it possible to establish that the authorities have carried out a reassessment that takes into account any changes in the prisoner's circumstances, situation or behaviour....A system of regular monitoring of a prisoner's physical and mental condition should also be set up in order to ensure its compatibility with continued solitary confinement...The Court cannot but observe in astonishment that in the present case the remand prison authorities for three years made no attempts to justify the applicant's protracted detention in solitary confinement, let alone its extension. It does not follow from the government's submissions that any measures - however formal or superficial - were taken at any point to verify whether the presumed risk to the applicant's life still existed. Moreover, the parties have not disputed the fact that the applicant's physical or psychological aptitude for long term isolation was never assessed by a medical specialist. The Court also takes into account the fact that the government have provided no information to refute the applicant's allegations that he was kept in nearly absolute social isolation....Lastly the court wishes to emphasise that it is essential that a prisoner should be able to have an independent judicial authority review the merits of and reasons for a prolonged measure of solitary confinement (see Ramirez Sanchez). It does not appear from the government's submissions that domestic law enabled the applicant to institute such proceedings" (paras 106/11).

[96] While every case will depend upon its own particular circumstances, it is striking that both AB and Onoufriou were very different from and, on their facts, much worse than the present case. In a partial decision as to the admissibility of, amongst others, Application no. 24027/07 brought by Babber Ahmad v The United Kingdom, a Chamber of the court stated as follows:

"129. In respect of the duration of the special administrative measures, the Court also finds that no issue would arise under article 3. It appears that Mr Hashmi has not yet been tried and thus has been subjected to special administrative measures pre-trial for nearly three years. However, Mr Al-Moayad spent one year and ten months in detention from the time of his extradition to the date of his sentencing. For Mr Kassir the equivalent period was approximately two years. These periods of detention are considerably shorter than the periods of confinement at issue in Ramirez Sanchez (eight years and two months), Őcalan (five years) and the Italian case as cited above, where the periods in question ranged from four years and six months in Messina to ten years and five months in Bastone. Moreover, as the information provided by the United States Department of Justice shows, there are clear constitutional and statutory guarantees of a speedy trial....

130. As to the objective pursued by special administrative measures, the Court readily understands, particularly in terrorist cases, that prison authorities will find it necessary to impose extraordinary security measures. In the present case, the United States authorities are best placed to assess the need for such measures and there is no evidence that they do so lightly or capriciously. There is also no risk of arbitrariness in the decision to impose special administrative measures. The decision is made with reference to established criteria. It is one that must be made by the Attorney General personally. He must make specific findings and give reasons for his decision. The decision is subject to annual review and judicial challenge."

[97] In Ahmad the applicants also relied upon alleged adverse consequences for their mental health. The Court accepted that the imposition of special administrative measures would have a greater effect on all three applicants than upon detainees who were in good mental health. "However it is not convinced that any adverse effect would automatically mean that the very imposition of such measures would entail a violation of article 3." The Court found that the application of special administrative measures on Mr Ahmad and the others before the trial would not violate article 3 of the Convention. In the context of an alleged violation of rights under article 8 flowing from the same special administrative measures, the Court considered that no separate issue arose under that article.

Discussion and decision on article 3

[98] The European jurisprudence teaches that there is no upper limit on the duration of a prisoner's segregation. Whether measures taken have reached the minimum level of severity for a breach of article 3 is relative. It depends upon an assessment of all the relevant circumstances of the case, of which the duration of the segregation is only one aspect. Other factors must be weighed in the balance, including the purpose of the segregation; the conditions and the general regime; the state of the prisoner's health; and the existence or otherwise of adequate procedural safeguards.

[99] It is worth keeping in mind that, in the present context, for a breach of article 3 the treatment of the petitioner must be "inhuman or degrading". Having reviewed all the extensive documentation lodged relative to the case, I am more than satisfied that I should proceed upon the basis that the primary reason for the petitioner's continued segregation was a concern for his safety if he was in the mainstream prison environment, and that there was a sufficient basis for that concern. So the question comes to be whether, against this background, the petitioner was treated in an inhuman or degrading manner. Given the nature of his crime, there is nothing inherently surprising in the problem which faced the prison authorities, especially given that the general prison population will include at least some very dangerous and unpredictable people. In addition to article 3, the authorities required to have regard to the petitioner's rights and their obligations under article 2. None of this is to say that the nature of the petitioner's crime would justify a breach of article 3. The state's obligation to comply with article 3 is absolute. However, in deciding whether what happened was inhuman or degrading, to my mind it is highly relevant that throughout it was designed to protect the petitioner from serious injury or worse. Unsurprisingly the European case law also demonstrates that prison authorities are under an obligation to safeguard the health of persons in custody.

[100] The petitioner's counsel conceded, in my view rightly, that in themselves the general conditions and regime, and the adverse consequences noted by Dr Doyle, were not indicative of non-compliance with article 3. His real concern was that the segregation, which I accept will have had adverse consequences for the petitioner, continued for four years eight months. Inherent in the complaint as to the length of the segregation are the associated concerns as to alleged non-compliance with the procedural safeguards provided by the Prison Rules. I have outlined those concerns earlier. The purpose of insisting upon sufficient procedural safeguards is to guard against any risk of arbitrariness, and to provide for guarantees regarding the prisoner's welfare and the proportionality of the measures taken. So it is necessary to ask whether there was any such risk, and whether there were sufficient guarantees. I do have some concerns as to the role adopted by the ECMDP. I will discuss them later in this opinion. I also note that, on the face of it, little seemed to have been made of the fact that at an earlier stage the petitioner's co-accused were returned to mainstream in other prisons, apparently without incident. However, as against that latter point, efforts continued to reintegrate the petitioner, and the intelligence remained that attacks on the petitioner were likely. There is no question but that substantial criticisms have been made as to the performance of the SPS in Mr Shahid's case, for example in the report of the Scottish Public Services Ombudsman in April 2010. However it is important to keep in mind that my task is not to provide a critique or commentary, nor to decide whether an earlier return to the mainstream prison population might have been possible, but to determine whether there has been a violation of the petitioner's Convention rights.

[101] Having reviewed the petitioner's affidavit, the reports and the extensive productions in the case, it is apparent that the authorities (in the broadest sense of the word) were constantly reviewing and assessing Mr Shahid's case and the relevant surrounding circumstances. He was always kept fully informed. He attended monthly case conferences which, in general, coincided with the applications to Scottish Ministers. His views were canvassed and taken into account. His mental and physical welfare were monitored at regular intervals. There was no criticism of the Prison Rules themselves, and in my view there was substantial compliance with the relevant procedures laid down in the Rules.

[102] There is no good or sufficient ground for questioning the bona fides or the genuineness of the motives of those involved in the management of the petitioner. Furthermore, the ultimate goal of reintegration was never abandoned. It is entirely understandable that, in what was, in its essentials, a continuing and largely constant picture, there was an element of repetition in the paperwork. In the particular circumstances of the present case it is not easy to envisage how the statements of reasons could have become "increasingly detailed and compelling" as time went by. The stated reasons for and purposes of the applications, which often referred to a long term management plan, or decisions by others as to when, how and where to reintegrate the petitioner, reflected the apparently intractable nature of the problem. As recognised by Professor Coyle, the petitioner presented a real difficulty to those responsible for him. No doubt they would have been roundly criticised and subject to litigation if they had returned the petitioner to the mainstream population where he was killed or seriously injured.

[103] Professor Coyle is critical of the decision taken several years previously to close the special units. He has identified a gap in the facilities available for the management of dangerous prisoners and those who require to be removed from general association for their own safety. No doubt any appropriate lessons will be learned, but, even on the assumption that the earlier decisions to close such units are regrettable, and that it would have been desirable for them or similar units to be available to those responsible for the petitioner, that does not mean that there has been a breach of article 3 in the present case. That depends upon an assessment of what happened and of all the relevant surrounding circumstances.

[104] There was a finding of a violation of article 3 in Onoufriou, in large part because of an absence of the necessary procedural safeguards.

"In the present case, the Court emphasises the lack of an adequate justification for the applicant's detention in solitary confinement, the uncertainty concerning its duration, the failure to put in place a reliable system to record solitary confinement measures and to ensure that the applicant was not confined beyond the authorised period, the absence of any evidence that the authorities carried out an assessment of the relevant factors before ordering his confinement and the lack of any possibility to challenge the nature of his detention or its conditions" (para 73).

The contrast between the circumstances of Onoufriou and the present case is profound. It is wholly understandable that in Onoufriou the Court was concerned that the measures taken were arbitrary and disproportionate, and this even before reference was made to the dreadful conditions and regime to which the prisoner was subjected. Similar comments can be made in respect of the reasons for the finding of a violation of article 3 in AB v Russia.

[105] I have already considered the lateness of the signing of certain orders. It would be fanciful to conclude that this resulted in or contributed to "inhuman or degrading treatment." It was submitted that a concern for the petitioner's safety could not justify segregation for four years eight months. I am not sure as to the basis for that proposition - but I acknowledge that there was bound to come a time when the pressure to end the segregation would prompt reintegration in the hope that all would go well. The Scottish Prisons Complaints Commissioner had recommended reintegration in 2008. Further unsuccessful attempts at reintegration were made in 2009. An adverse report was made by the Scottish Public Services Ombudsman in mid 2010, and it would be naive to assume that the grant of full legal aid for the current proceedings was not a contributory factor in what happened. It could only add to the case for reintegration "come what may." If the petitioner was actively pursuing a case in the courts to force reintegration, it would be all the more difficult for him to complain if the worst fears were realised. To my mind the fact that there came a time when the authorities felt it right to take a risk was indicative of a recognition that the segregation regime could not go on forever. By the summer of 2010 over three and a half years had passed since the conviction, and no doubt it was hoped that some of the heat had died down. The records show that throughout the goal was to end segregation and return the petitioner to mainstream. I do not conclude from the fact that reintegration was achieved in the summer of 2010, and that at least initially it went well, that previously there was no good or sufficient reason for the measures taken, nor that by then they had become arbitrary and disproportionate. In the whole circumstances of this case I am not prepared to draw the conclusions of the minority in Ramirez Sanchez quoted earlier.

[106] Much was made in Mr Collins' submissions as to the, as he put it, "struggle" to obtain full legal aid for the present proceedings. He was not willing to offer a view as to when the alleged breach of article 3 occurred, and it is far from surprising that, as time went by, the more persuasive was the case for probabilis causa litigandi. As is demonstrated by the current proceedings, and unlike in some of the European cases discussed earlier, our law does provide for judicial challenge to decisions concerning a prisoner's segregation. It also provides for judicial challenge to refusals of legal aid, for example cf Petition of EM [2011] CSOH 134. In any event the absence of legal aid is not a bar to legal proceedings. I am not persuaded that the earlier refusals of full legal aid resulted in or contributed to the petitioner's segregation amounting to inhuman or degrading treatment in terms of article 3.

[107] Drawing these strands together, the cases demonstrate that segregation of four years and eight months is not, in itself, indicative of a violation of article 3. For example, in Ramirez Sanchez solitary confinement for over eight years was sanctioned. Other decisions support the view that it is not sufficient simply to point to segregation lasting for several years. The assessment must be more sophisticated. The conditions under which the petitioner was held, and their effect upon him, must be taken into account. In this case they do not point to the minimum level of severity of ill-treatment required for a violation of article 3. In addition there were sufficient procedural safeguards to guard against any risk of arbitrariness. While such a lengthy period of segregation is a cause for concern, its purpose was legitimate. It was directed towards the petitioner's own safety and protection from the potential for serious injury or worse. The prison service was faced with a difficult problem. Its response was proportionate. Throughout the ultimate goal of reintegration was maintained. Cases where there has been a finding of a violation of article 3 have turned on much harsher regimes and an absence of appropriate procedural safeguards. While the duration of the petitioner's segregation did not amount to inhuman or degrading treatment, plainly it was appreciated by the authorities that by the summer of 2010 the time had come when other steps required to be taken, even if they carried obvious risks. In common with Professor Coyle, who provided two balanced and considered reports, I consider that the SPS handled a difficult situation with care and in a reasonable manner. Professor Coyle's observations on the difficulties caused by the closure of the special units are no doubt well made, and I am confident that they will be carefully considered by those responsible for such matters. I agree with him that it is to the credit of all involved that they remained focussed on an ultimate return to general association for the petitioner.

[108] I have considered and addressed all the submissions made on the petitioner's behalf by Mr Collins and I have reviewed all the cited cases and the reports and other documentation lodged by the parties. In all the circumstances of the present case, while recognising that the petitioner was segregated for a lengthy period, standing the reasons for it, the conditions under which he was held, and the procedural safeguards in place, I am satisfied that there was no violation of his rights under article 3.

Submission under article 8

Submissions for the petitioner

[109] The submission for the petitioner was that his segregation for over 41/2 years was an interference with his private life under article 8.1. On the occasions when he had been segregated without valid authority under the Rules, that interference had been in a manner not in accordance with the law for the purposes of article 8.2. Failing that, viewed as a whole, it was arbitrary, and insufficiently connected to the legal structures under the Prison Rules to be properly referable to them. The real decisions were made by the ECMDP, a non-statutory committee within SPS, whose decision-making was not properly transparent nor subject to proper procedural safeguards or review. It was submitted that the formal decision-making process carried out in relation to Rule 94 and its predecessor "provided in effect a façade of legal regulation of the petitioner's segregation". Reference was made to the reports by Dr McManus and Professor Coyle, and to all the productions in the case. There is no maximum period for segregation under the Rules. Furthermore the petitioner was unable to access a judicial body with powers to end his segregation, notwithstanding "that it had long since ceased to be justified". Reference was made to the recommendation in 2008 by the Scottish Prisons Complaints Commissioner.

[110] In the event that the segregation was lawful for the purposes of article 8.2, it was submitted that it was not proportionate to any prescribed legitimate aim. It was not a proportionate response to a perceived threat to the petitioner's safety. It was not proportionate standing the absence in domestic law of any finite limit on the period of segregation, and the lack of procedural protection by way of a right to have the necessity and lawfulness of continuing segregation reviewed by an independent judicial body. Reference was made to R (F) v Secretary of State for the Home Department [2010] 2 WLR 992, a case concerning the notification requirements placed on sex offenders.

Submissions for the respondent

[111] On behalf of the respondents Mr Ross accepted (contrary to the respondents' note of argument) that article 8 was engaged. It was accepted that the extended segregation amounted to an interference with the petitioner's article 8 rights, thus the question comes to be whether that interference was in accordance with article 8.2. That turns on whether the interference was in accordance with law, fulfilled a legitimate aim, and was necessary in a democratic society. The petitioner's main complaint is that the interference was not in accordance with the law. However, as discussed earlier, segregation is provided for in Scots law by the Rules made under the Prisons (Scotland) Act. The petitioner was removed from association under those Rules. The petitioner's reliance upon the delays in the signing of certain orders is a return to the issues discussed under the first ground of challenge. Those delays did not render the orders unlawful.

[112] The petitioner also submits that, viewed as a whole, the petitioner's segregation was arbitrary. With regard to the role of the ECMDP Mr Ross referred to the Executive Arrangements for the Management of Difficult Prisoners, and in particular to paragraph 7, which provides for continuous assessment of prisoners on segregation for over three months. It was accepted that the ECMDP was involved in Mr Shahid's case. The minutes of its meetings had been lodged. In attendance were representatives from prisons, those representatives being at the level of persons who would be making such decisions on a local basis. There can be no objection to the SPS establishing the ECMDP, nor to it discussing cases such as that of Mr Shahid. On any view his was a difficult case to manage. It would not be acceptable if management by the ECMDP replaced or subverted the scheme in the Prisons Rules. However it is apparent from the relevant documentation that the ECMDP did not replace or subvert management in accordance with Rule 94. The day to day management of Mr Shahid and other prisoners remained in the hands of the individual establishments. Orders to segregate Mr Shahid and applications for renewal were not made by or to the ECMDP. They were made by officials at the appropriate level in the relevant prison, and were considered by officers at the appropriate level in the Scottish government. It was accepted that in the paperwork frequent referenced is made to the ECMDP. That reflected the fact that Mr Shahid's case and issues such as the management of his transfer from prison to prison, and possible future options, were under regular consideration by that committee.

[113] Turning to the legitimate aim requirement, the list in article 8.2 includes protection of health and the prevention of disorder or crime. The reasons for removing Mr Shahid from general association were his own protection and the preservation of the good order of the various prisons in which he was held. Those were legitimate aims within the meaning of article 8.2. Mr Ross did not understand that matter to be in dispute.

[114] Turning to the requirement that the measures taken were necessary in a democratic society and satisfied the test of proportionality, the question comes to be - as between the action taken and the aim of the intervention, were the measures acceptable? Was segregation a reasonably proportionate action to take to maintain order in the prison and to protect Mr Shahid's safety? Mr Ross made the following submissions

(i) Given the nature of his crime there was a high level of feeling against the petitioner in the prison population. The relevant officials charged with making decisions concerning his management considered that he would be at substantial risk of serious harm if returned to the mainstream prison population. There is a sharp contrast between the present case and the circumstances in cases such as AB v Russia.

(ii) The respondents were under a duty to assess the risk facing the petitioner in mainstream. It is apparent from the documentation that he wanted to be placed in mainstream. He believed he could cope, but the prison service could not operate simply on his assessment of the situation. This was all the more so in the light of the petitioner's intention, expressed by him on a number of occasions, that he would respond in a violent manner to any threat. The prison service was under a duty to make an objective assessment of those issues. Given the information which they had, they would have been open to very serious criticism, and indeed legal action, had the petitioner been placed in mainstream and come to harm.

(iii) Reference is made in the petition to the earlier decision to close units such as the Barlinnie Special Unit. However the resolution of the present case does not require or justify a general inquiry into the management of difficult prisoners in Scotland over recent history, nor an investigation of the effects of segregation on prisoners in general. An application for judicial review is not an appropriate procedure for a public inquiry into executive policy. The court requires to decide whether the impact on the petitioner of the decisions under challenge was in accordance with the law, and was proportionate to a legitimate aim. In any event there was another possibility, namely the petitioner being placed "on protection", which provides a method of providing for the safe custody of vulnerable prisoners. Prisoners may be vulnerable for a number of reasons, and they can be placed in protected areas along with other vulnerable prisoners. Such prisoners attend work parties, recreation and other activities, but do not mix with the wider prison population, including other prisoners who may pose a threat to them. Prisoners are not compelled to go on protection against their will. Prisoners will often oppose protection because of a fear that they will lose credibility amongst the rest of the mainstream population. That was the petitioner's position. The documentation demonstrates that he was not prepared to take advantage of this opportunity. There was one occasion when he was recorded as saying that he would go on protection but only in E Hall, Barlinnie. It was not for a prisoner to dictate the circumstances. Moreover the profile of the prisoner group in E Hall was considered particularly unsuitable for Mr Shahid. It contained prisoners who posed particular difficulties in relation to their management, and prisoners who were admitted the evening before they were due to appear in court. In the letter from the Scottish Prisons Complaints Commissioner to the Prison Service dated 2 June 2008, it is said that Mr Shahid was prepared to participate in any of the protection units in the prison estate. This runs counter to the position adopted by him both before and after this letter. If this matter is disputed and turns out to be critical, then evidence would be required. The overall result was that the petitioner himself narrowed the available options in his management. This can be weighed in the balance in deciding whether the segregation was a proportionate measure. If the court takes the view that it is not able to assess the issue of proportionality, then the question of justification might require to be explored further at a second hearing. However, Mr Ross invited the court to refuse the declarator sought in terms of article 8.

[115] Mr Ross indicated that the petitioner's brother had been returned to mainstream conditions at HMP Dumfries in 2008. He explained that Dumfries has a significant proportion of sex offenders, so it is not a normal mainstream prison. Being there was akin to being on protection. However, Mr Shahid did not wish to go on protection. As for the other co-accused, the position was more complicated. He returned to mainstream in Inverness in June 2009. Thereafter he had periods in segregation. In May 2010 he was transferred to HMP Dumfries. After the first hearing the respondents lodged a note providing some further information concerning the management of the petitioner's co-accused. Its contents are difficult to reconcile with some of the submissions at the hearing and with some of the documentation lodged in court. However I do not consider that these details are critical to a proper resolution of the petitioner's complaint of a violation of his Convention rights.

[116] Mr Ross explained that segregation and punishment are not identical. In particular if on punishment there is no access to various personal items, nor to television, DVDs etc. While the petitioner was in mainstream at Edinburgh during his trial, he spent much of his time travelling to and from and attending court. At the weekends less time was spent in association. It did not follow that thereafter he should be able to remain in mainstream. After the conviction, considerable notoriety surrounded the case.

[117] With reference to the intelligence material, Mr Ross stressed that the intelligence documents lodged in process are brief. They are not full reports and analyses. Decisions to request and continue segregation were made by senior officers in the prison service who knew the prisons and the dynamics of the prison in which they were working. A degree of latitude should be given to those making difficult decisions where the safety of prisoners and staff is at issue. It had been suggested that there was evidence of a decision that Mr Shahid should remain in segregation for the long term, and that everything which followed was a façade. Mr Ross submitted that the fact that the Rules restrict extensions to one month at a time does not preclude the prison service from making plans over a longer period. This was especially so in circumstances where it was apprehended, for good reason, that segregation might have to continue for a long time. Of course there still required to be a genuine review in terms of the Rules each month. The ECMDP was quite properly discussing Mr Shahid's case, however decisions on his day to day care remained the responsibility of the individual governor and the Scottish Ministers under Rule 94. One of the minutes of the ECMDP included an agreed timetable of the petitioner's movements as between December 2006 and January 2008. However one cannot draw the conclusion that there was a fixed decision to keep him in segregation throughout that period. In 2007 there was a failed attempt at reintegration at Shotts. Each month the relevant governor required to be of the view that continuing segregation was necessary for a reason identified in Rule 94. The governor was entitled to take account of material from a variety of sources, including information gathered from the ECMDP. As to the "cut and paste" allegation, when the reasons for segregation remained the same from one month to the next, if there was a degree of cutting and pasting that is not a basis for concluding that the reasons were not genuine. Finally, as to the letter from the Prisons Complaints Commissioner of 2 June 2008 it was noted that the Commissioner did not take into account the unsuccessful attempt to return the petitioner to mainstream conditions at Shotts.

Further submissions for the petitioner

[118] In response Mr Collins stressed that the real issue under article 8 is the legality or otherwise of what occurred. If there was no breach of article 3, and any interference with article 8 was in accordance with the law, he did not advance any further submissions regarding article 8.

Discussion and decision on article 8

[119] Article 8 provides that everyone has the right to respect for, amongst other things, his private life. The respondents' counsel accepted that the petitioner's extended segregation involved an interference with that right. I shall approach the matter on that basis. The issue under article 8.2 focused by counsel for the petitioner was that the interference was not in accordance with the law. Ultimately, and in my view rightly, there was no dispute with Mr Ross's submissions on the other factors specified in article 8.2. The discussion of the relevant issues under article 8 involves some overlap with those considered in respect of article 3.

[120] Scots law lays down a detailed regime for the segregation of prisoners. Within that regime there is more than sufficient protection against any risk of arbitrariness. In the present case the segregation was for a legitimate purpose. The relevant documentation demonstrates that there was no shortage of reviews, case conferences, applications for authorisation from Scottish Ministers, etc. The petitioner himself was kept fully informed, and his views were taken into account. His health was monitored on a regular basis, all as required by the Rules. He remained entitled to visits from family and friends, though for lengthy periods no one visited him. He received visits and advice from his lawyers. I have already dealt with the submission concerning the delay in the signing of some of the orders. This did not render them unlawful.

[121] Mr Collins submitted that the continued segregation was arbitrary in that the real decisions were made by the ECMDP. The contention was that there was a "façade" of legal regulation. It was not a proportionate response to any threat to the petitioner's safety. I agree that the role of the ECMDP does not fit easily within the structures laid down in the prison rules. It is clear that the local governors were looking to that body for guidance. However it is also plain that the local governors, and the Scottish Ministers, were satisfied that the petitioner should not be in the mainstream prison environment. I accept Mr Ross's submission that at the end of each month the appropriate procedure was followed. It was in the nature of the case that longer term plans were being discussed by a national or strategic body, but none of that prevented the local governor or the Scottish Ministers from ending the segregation at any of the monthly reviews if they were of the opinion that this was the correct course to take, all as demonstrated by the decisions taken at Perth in 2010. Furthermore from time to time attempts were made by various prisons to achieve reintegration.

[122] The ECMDP was a national committee looking at strategic problems caused by the apparent need for the petitioner and his co-accused to be removed from association over a lengthy period. For example, the view was that it would be for the best not to hold the petitioner on segregation in one prison for an overly long period. That kind of decision required a national perspective and strategy. There was no suggestion that the ECMDP was made up of persons unqualified or inappropriate to offer advice and overall direction. I accept Mr Ross's submission that the ECMDP did not subvert the management of the petitioner's segregation. No doubt it will be for consideration whether the ECMDP should be formally recognised, however its role in this case has not persuaded me that Mr Collins' complaint of arbitrariness or a façade of legal regulation is well founded. The case of Mr Shahid and his co-accused raised, if not unique, at least very particular and difficult challenges. Even if the role adopted by the ECMDP was inappropriate or outside the Rules, in the particular circumstances of this case I would not consider that it amounted to a violation of the petitioner's article 8 rights.

[123] In so far as Mr Collins maintained that the measures taken were not proportionate to the aim pursued, nor to the threat to the petitioner's safety, I reject that submission for much the same reasons as those discussed in respect of the article 3 claim. There was a substantial body of evidence that the petitioner would be in danger from the general prison population. The authorities would have been open to serious criticism had they failed to take steps to protect the petitioner from reprisals from other prisoners. The aim pursued was a legitimate one. As already observed in respect of the article 3 case, the circumstances of the petitioner's case can be contrasted with those in AB v Russia where the government failed to demonstrate a link between the segregation and any threat to the prisoner's safety. As to the submissions based upon the closure of the special units, and as to the alleged lack of access to the courts, I refer to my earlier comments made in respect of the case based upon article 3. I have already acknowledged that the management of Mr Shahid by the SPS has not been free from legitimate comment and criticism. However my task is to decide whether there has been a violation of his Convention rights. In all the circumstances I reject the petitioner's case under article 8.

Disposal

[124] In these circumstances it is not necessary to resolve the parties' submissions on remedy. The main issue between them was whether any breach of the Convention should be marked by an award of just satisfaction damages. It was accepted by Mr Collins that any award would be modest. Whether any such award would have been appropriate would have depended upon the basis on which it was held that there had been a violation of the petitioner's Convention rights. Given that I have not made any such finding, I do not consider that I need say anything further on this issue. In the event that I was not prepared to uphold his submissions Mr Collins invited me to continue the whole matter to a further hearing for evidence to be led. I see no need to do that. The relevant issues in fact and law have been fully canvassed in counsel's submissions, and I have more than sufficient material to resolve the case now. A clear picture emerges from the detailed information before me. In the whole circumstances I shall refuse the application for judicial review.

Postscript

When the drafting of this opinion was at an advanced stage the press carried a report that the petitioner had been a victim of a knife assault carried out by a fellow prisoner.