[2014] CSIH 18A

Lord Menzies

Lord Drummond Young

Lord Wheatley




in the reclaiming motion


Petitioner & Reclaimer;





Petitioner: O'Neill, QC; Kelly, Solicitor Advocate; Balfour & Manson LLP (for Taylor & Kelly, Coatbridge)

Respondents: Ross; Scottish Government Legal Directorate

31 January 2014

[1] On 8 November 2006 the petitioner was convicted of the racially motivated murder of a 15-year-old-boy, Kriss Donald. His brother and another man were also convicted of the murder. The Lord Ordinary notes that the crime was brutal and sadistic, and had raised strong feelings at the time and subsequently. The petitioner was sentenced to life imprisonment with a punishment part of 25 years. On 10 October 2005, while he was on remand, the petitioner was removed from general association with other prisoners ("segregated"). Apart from a short period during his trial, from September to November 2006, he remained continuously segregated until 13 August 2010, when he was allowed once again to associate with other prisoners ("mainstream"). The petitioner now claims that his segregation was contrary to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 and, separately, contrary to article 3 of the European Convention on Human Rights, which provides protection against torture and cruel and unusual punishments, and article 8 of the same Convention, which protects the right to private life.

[2] In the present petition the petitioner seeks judicial review of the decisions to segregate him made by the prison authorities. He seeks three declarators: first that his segregation during certain specified periods was ultra vires of rule 94 of the 2006 Rules; secondly that his segregation in the circumstances referred to was contrary to article 8 of the Convention and accordingly ultra vires in terms of section 57(2) of the Scotland Act 1998 and section 6 of the Human Rights Act 1998; and thirdly that the acts of the respondents in segregating him during the entire period from 10 October 2005 to 13 August 2010 were incompatible with his rights under article 3 of the Convention and accordingly ultra vires of Scottish Ministers in terms of the same two sections. Damages of £6,000 are sought by way of compensation. The respondents, the Scottish Ministers, are responsible for the general superintendence of prisons. They appoint governors and other officers of prisons in Scotland, and they are liable for any wrongful acts of those officials.

Findings in fact
[3] In his opinion the Lord Ordinary made detailed findings of fact. The legal representatives of the reclaimer accepted that these set out the facts of the case accurately, although obviously they did not accept the approach to those findings taken in other parts of the Lord Ordinary's opinion, and they suggested that other matters were significant. In our view the Lord Ordinary's findings in fact set out accurately the essential facts of the case, and we now reproduce them and adopt them as part of the present opinion. Those findings are as follows:

"[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 on-going 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".

The Lord Ordinary's decision
[4] Against those findings in fact, the Lord Ordinary rejected the whole of the petitioner's arguments challenging his segregation. In relation to rule 94 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006, the Lord Ordinary noted that it was a matter of admission that on a number of occasions the time limits set down in the Rules for approval of extensions for renewal of extensions were not met. He held that the crucial question was to ask whether illegality was the intention of the legislature in the event of non-compliance with the specified time limits. In the present case, this raised three distinct issues: whether the period covered by a late order was valid; if it was not whether that invalidity infected subsequent ex facie timeous renewals; and whether a late order operated retrospectively to cover a period prior to its grant. The Lord Ordinary held that the primary purpose of involving the respondents in the management of segregated prisoners was to ensure an appropriate level of regular oversight of the decisions taken by the local prison management. In the circumstances, he concluded that there had been substantial 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 respondents. He was further satisfied that no material prejudice, or indeed any prejudice, flowed from the lateness in signing certain of the orders. Consequently the challenge based on the late orders was rejected. Parliament would not have intended that the late order should be invalid, nor that any time spent on segregation under subsequent timeous orders should be unlawful because of the delays. On that basis the subsequent renewals operated to authorize the segregation occurring between the expiry of the previous order and the signing of the new order.

[5] In relation to the challenge based on article 3 of the European Convention on Human Rights, the Lord Ordinary proceeded on the basis of the principles laid down by the Grand Chamber of the European Court of Human Rights in Ramirez Sanchez v France, (2007) 45 EHRR 49, a case where segregation for more than eight years was sanctioned. He further had regard to an affidavit given by the petitioner which set out the general conditions in which he was held while in segregation in the various prisons in which he was held, and to four reports. The first of these was a report from Professor Andrew Coyle, Professor of Prison Studies at King's College, University of London, who had reported on the management of prisoners in the Scottish Prison Service, particularly in respect of the use of rule 94. The second report was from Dr J J McManus, who was previously Professor of Criminal Justice at Glasgow Caledonian University, and consisted of a commentary on interference with the petitioner's article 8 rights. The Lord Ordinary comments that his report in large measure involved the consideration of questions of fact and law that were within the sole jurisdiction of the court; to that extent it was of no utility. The third report was from Professor Michael Corcoran, who was the principal of a design consultancy and was Emeritus Professor of Building Services Design at the Department of Architecture and Building Science at the University of Strathclyde. It dealt with the environment in the cells occupied by the petitioner in segregation units. The fourth report was from Dr John Doyle, a psychologist, and dealt with actual or foreseeable psychological problems that the petitioner might suffer owing to his having been mostly in segregation in prison since October 2005.

[6] The Lord Ordinary stated that it should be borne in mind that in the present context, for there to be a breach of article 3, the treatment of the petitioner must be "inhuman or degrading". He stated that, having reviewed all of the extensive documentation that had been lodged, he was more than satisfied that he should proceed upon the basis that the primary reason for the petitioner's continued segregation was a concern for his safety if he were in the mainstream prison environment, and that there was a sufficient basis for that concern (paragraph [99]). The question was accordingly whether, against that background, the petitioner was treated in an inhuman or degrading manner. Given the nature of the petitioner's crime, there was nothing inherently surprising in the problems that faced the prison authorities. Furthermore, the authorities required to have regard to the petitioner's rights and their obligations under article 2 of the convention, which protects the right to life. In deciding whether what happened was inhuman or degrading, the Lord Ordinary considered it highly relevant that the petitioner's segregation was designed to protect him from serious injury or worse. The European case law demonstrated that prison authorities were under an obligation to safeguard the health of persons in custody.

[7] After reviewing the petitioner's affidavit, the reports and the extensive productions, the Lord Ordinary was of opinion that the authorities were constantly reviewing and assessing the petitioner's case and the relevant surrounding circumstances. He stated (at paragraph [101]):

"[The petitioner] 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".

Thus procedural safeguards were in place, an important point of distinction from leading Strasbourg cases where a breach of article 3 had been found. As to the lateness of signing certain orders, the Lord Ordinary observed (at paragraph [105]) that it would be fanciful to conclude that this resulted in or contributed to "inhuman or degrading treatment". It had been submitted that a concern for the petitioner's safety could not justify segregation for four years and eight months; on this matter the Lord Ordinary acknowledged 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. Reintegration had been recommended in 2008 and unsuccessful attempts were made in 2009. The petitioner had been returned to mainstream imprisonment in 2010; the Lord Ordinary thought it quite likely that the grant of legal aid for the present proceedings was a contributory factor in the ultimate decision. Nevertheless, by 2010 it was no doubt hoped that the initial ill feeling against the petitioner had died down. Throughout the goal of the prison authorities had been to return the petitioner to mainstream. In those circumstances the Lord Ordinary refused to conclude from the fact that reintegration was achieved in 2010 that there had been no good or sufficient reason for the measures taken previously, nor that by then they have become arbitrary and disproportionate.

[8] In relation to article 8 of the Convention, the Lord Ordinary concluded that there had been no disproportionate interference with the petitioner's private life. Scots law lays down a detailed regime for the segregation of prisoners, and within that regime there is adequate protection against any risk of arbitrariness. In the present case the segregation served a legitimate purpose, and there had been many reviews, case conferences and applications for authorisation from Scottish Ministers. The petitioner was kept fully informed of what was happening, and his views were taken into account. His health was monitored, and he was entitled to visits from family and friends, although for lengthy periods no one visited him. The measures taken were necessary to deal with a threat to the petitioner's safety; the authorities would have been open to serious criticism had they failed to take steps to protect the petitioner from reprisals. In all the circumstances the measures taken were proportionate, and stood in obvious contrast to cases where the European Court of Human Rights had held that segregation was unlawful under the Convention.

[9] We are in agreement with both the decision of the Lord Ordinary and his reasons. In view of the detailed arguments that were presented to us, however, we will set out in our own words why we consider that the reclaimer's claims are entirely ill-founded. We will deal in turn with each of the three grounds of challenge.

The Prison Rules and the late rule 94 orders
[10] The power to segregate prisoners is contained in rule 94 of the Prisons and Young Offenders Institutions (Scotland) Rules 2006. (Prior to 26 March 2006 equivalent provisions were found in the Prison and Young Offenders Institutions (Scotland) Rules 1994). Rule 94, which is headed "Removal from association", provides as follows:

"(1) Where it appears to the Governor desirable 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 Governor may order in writing that a prisoner shall be removed from association with other prisoners, either generally or during any period the prisoner is engaged or taking part in prescribed activity.


(4) The Governor when making an order under paragraph (1), shall-

(a) specify in the order whether the removal from association is -

(i) in general; or

(ii) in relation to a prescribed activity;


(c) specify in the order the reasons why the order is made;

(d) record in the order the date and time it is made; and

(e) explain to the prisoner the reasons why the order is made and provide the prisoner with a copy of the written order.

(5) A prisoner who has been removed from association generally or during any period that the prisoner is engaged in or taking part in a prescribed activity by virtue of an order made by the Governor in terms of paragraph (1) shall not be subject to such removal 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.

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

Under paragraph (7) the Governor may cancel an order under paragraph (1) at any time.

[11] It is agreed that on various occasions the time limits set down in the Prison Rules were exceeded. The critical question is the effect that has on the legality of the reclaimer's segregation. The Lord Ordinary held that, provided that there was substantial compliance, the intention underlying the legislation was that the validity of the order for segregation and subsequent orders should not be affected. For the reclaimer it was submitted that this was wrong, and that any failure to observe a time limit, for whatever reason, rendered subsequent segregation unlawful. It was said that the Lord Ordinary had conflated a number of distinct matters, all of which should be considered separately: these were the construction of the relevant rules, the purpose of the rules, the reason given for segregation in the particular circumstances of the case, prejudice to the reclaimer, the provision of a remedy and the question of Parliament's intention following upon non-compliance. If there were no validly granted authority to segregate, there could be no valid renewal. Furthermore, segregation was envisaged as a short-term measure. The regulations were necessary to provide a structured protective framework for the legal regulation of prisoners who are segregated.

[12] We have no hesitation in rejecting these submissions. The critical issue is the construction of rule 94, with regard in particular to the consequences of non-compliance with the time limits specified in paragraphs (5) and (6) of the rule: 72 hours in the case of an order made by the Governor and one month in the case of authority granted by Scottish Ministers. In construing the rule, as with any legislation, the court must adopt an approach that has regard to the context in which the rules operates and the purpose of the rule.

[13] The context in which the rules operate is that association with other prisoners is a normal privilege in Scottish prisons. It cannot be described as a right, because the privilege of association may be withdrawn in accordance with the Rules, notably rule 94 dealing with segregation. Under a segregation regime, the prisoner is typically locked in his cell for at least 20 hours per day. Meals are taken in the cell. The prisoner normally has access to one hour of exercise per day in the segregation unit yard, and will often have access to a cardiovascular gym in the segregation unit. He is entitled to receive visits and to daily access to prison telephones, and a daily access to a shower. After March 2008 all the cells in which the reclaimer was accommodated had electric power and television; before that he was permitted a battery-powered television in his cell. The reclaimer only received infrequent visits, although he made use of prison telephones extensively. He received some visits from an Imam, and also daily newspapers. It was not disputed that holding prisoners in segregation for prolonged periods is undesirable.

[14] Nevertheless, it is obvious that in certain circumstances segregation is essential for the purpose of maintaining good discipline within the prison, and on occasion for protecting the safety of prisoners. An obvious example of the former is where one or more prisoners have been making threats against other prisoners or prison staff. That is what happened in the present case. We discuss the evidence available to the prison authorities below at paragraphs [22] - [28]. It is clear from that evidence that serious threats of harm to the reclaimer had been made by other prisoners. Those threats could not be attributed to a single prisoner or a small number; it is clear that there was very general ill feeling against the reclaimer on account of the brutal nature of the murder of which he had been convicted. In these circumstances it was plainly not practicable to segregate the prisoners making the threats. Instead, for the reclaimer's own protection, it was decided that he should be segregated. It should be emphasized that the threats to the reclaimer were serious, and the information about them was based on intelligence that was, generally speaking, reliable. The prison authorities have an obligation to ensure the safety of prisoners, and in the circumstances segregation of the reclaimer was considered to be the only reliable means of securing his safety.

[15] The purpose of rule 94, read in the context of the Rules as a whole, was to provide a mechanism for segregation in cases where it was necessary either to maintain discipline within a prison or to protect the safety of a prisoner. The rule contains time limits: the Governor's power to segregate is limited to a period of 72 hours, and if that is to be exceeded authority must be sought from the Scottish Ministers, who can authorize segregation for a period of one month, and on subsequent application from the Governor may renew that period for further periods of one month. In our opinion the purpose of those time limits is twofold: to ensure that segregation is maintained only for so long as is necessary to maintain discipline or to secure the safety of a prisoner; and to ensure that the position of an individual prisoner is reviewed regularly in order to confirm that the reasons for segregation still exist.

[16] Provided that regular review is maintained as a matter of substance, however, we are of opinion that failure to observe a time limit by a small margin should not invalidate continued segregation. In the present case the failures to observe time limits were by small margins, in relation to the duration of the segregation that had been permitted. The Lord Ordinary summarizes the position as follows (paragraph [27]):

"Orders were signed late on 15 occasions in the period from 13 December 2005 to 13 March 2010.

One order was late by 10 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 rest of the 70 or thereby orders were granted on time".

All of these orders authorize segregation for a period of one month. In that context, even a delay of 66 hours cannot be regarded as substantial. If delays of this magnitude had the effect of invalidating further segregation, the consequences could be extremely serious. The prison authorities were acting on apparently reliable intelligence that threats were being made against the reclaimer; if they had released him into mainstream following a failure to renew a segregation order timeously and he had been seriously injured or killed, they would clearly have been open to the charge that they had failed to take adequate care for his safety. The critical point is perhaps that segregation orders are made for grave reasons, and should not be made otherwise; therefore relatively minor infringements of the time limits specified in rule 94 should not invalidate segregation. The purposes of segregation are important, and we do not believe that it could have been the intention underlying rule 94 that short delays in renewing orders for segregation would have the effect of rendering continued segregation unlawful.

[17] The material decisions regarding segregation were made by Scottish Ministers. In considering the significance of late authorization, it is important to have in mind the purpose of involving Scottish Ministers in decisions to segregate. On this matter, we agree with the view of the Lord Ordinary that the primary purpose of involving Scottish Ministers in the management of segregated prisoners was to ensure an appropriate level of regular oversight of the decisions taken by the local prison management; that explained the almost immediate reference to Scottish Ministers if a prisoner were to be segregated from more than 72 hours, and monthly reviews thereafter (paragraph [42]). In our opinion this is clearly correct. Thus Scottish Ministers required to consider requests for segregation made by the Governor in order to ensure that an adequate justification for segregation still existed. That is the substance of what they were doing. The continuing decisions in favour of segregation indicated that such justification continued to exist (a matter that we return to at paragraph [22] below). The continuing substantive basis for segregation is not in any way affected by the fact that some of the decisions were made a few hours, or up to three days, late. On that basis, a purposive approach to the construction of rule 94 clearly supports the view that late orders were valid and provided a justification for segregation since the previous valid order.

[18] Such an approach is supported by authority. In London and Clydeside Estates Ltd v Aberdeen District Council, 1980 SC (HL) 1, the Lord Chancellor set out a general approach to time limits for the exercise of statutory authority. He stated (at pages 30-31):

"When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be 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 and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that the authority can safely proceed without remedial action, confident that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. But in a very great number of cases, it may be in a majority of them, it may be necessary for a subject, in order to safeguard himself, to go to the court for a declaration of his rights, the grant of which may well be discretionary, and by the like token it may be wise for an authority... to do everything in its power to remedy the fault in its procedure so as not to deprive the subject of his due or themselves of their power to act".

The Lord Chancellor went on to indicate that the use of language such as "mandatory" or "directory", while possibly helpful in argument, was misleading if it was taken to indicate that a developing chain of events must be forced into rigid legal categories. In the field of the courts' supervisory jurisdiction over administrative action, rigid legal classification should not be used, as the jurisdiction is inherently discretionary. That case was followed in Charles v The Judicial and Legal Services Commission, [2003] 2 LRC 422, a decision of the Privy Council in an appeal from Trinidad and Tobago. In the latter case there had been a failure to observe time limits laid down by regulations dealing with discipline and misconduct in the public service: notice of the complaint was given one day late, written statements were not obtained timeously, and the investigating officer's report on the disciplinary complaint was not submitted timeously, no extension of time having been obtained. It was held that these failures to observe time limits did not invalidate the disciplinary proceedings. The delays were in good faith; they were not lengthy, and they were described as "entirely understandable" (paragraph 17). The appellant had suffered no material prejudice, and nothing precluded his ability to have a fair trial. On that basis it was held that the regulations could not have been framed with the intention that breaches of the kind under consideration would deprive the relevant authority of jurisdiction to act as it thought fit on the investigating officer's report and thereby fulfil its public responsibilities. A broadly similar approach is taken in Attorney General's Reference (No 3 of 1999), [2001] 2 AC 91, per Lord Steyn at 118.

[19] These cases indicate that a flexible approach must normally be taken to public law time limits. On occasion, failure to adhere to a time limit may invalidate all further procedure. In most cases, however, there will be no automatic invalidity. The purpose of the time limit, the legal and factual context in which it arises, and the practical consequences of failure to adhere to the time limit will always be important in determining whether there is invalidity. Other relevant matters will include the length of any delay, the question of whether delay has caused actual prejudice, and the existence or otherwise of good faith. In every case the critical question is whether the intention underlying the legislation was that a failure to observe the time limit in the particular circumstances of the case should result in total invalidity. The application of these principles is illustrated by two further cases to which we were referred. In R v Soneji, [2006] 1 AC 340, the defendants had pled guilty to money laundering offences. The prosecutor then served notice to make a confiscation order in respect of the proceeds of criminal conduct. The prosecutor's notice, however, had been served approximately one week late, and the judge had not exercised power to extend the time limit on account of exceptional circumstances. It was held that the failure to comply with the time-limit did not render the prosecutor's notice invalid. The confiscation order had been made within the general timeframe contemplated by Parliament; thus the prejudice to the accused was not significant, and was decisively outweighed by the countervailing interest in not allowing a convicted offender to escape confiscation for bona fide errors in the judicial process: Lord Steyn at paragraph 24; Lord Rodger at paragraph 41. Furthermore, the provisions in question created a duty on the court to consider the making of a confiscation order; that duty was not to be frustrated by the failure to observe a time limit that caused no material unfairness: Lord Cullen at paragraph 57. There had been substantial performance, as the departure from the prescribed time limit was minor and no prejudice was created or injustice done: Lord Carswell at paragraph 67-68. These are all factors that can be spelled out of the earlier decisions.

[20] Soneji should be contrasted with R v Clarke, [2008] 1 WLR 338, where there had been a failure to sign the bill of indictment initiating criminal proceedings. It was held that that rendered the subsequent proceedings invalid. The court regarded technicality as distasteful when it appeared to contradict the merits of the case, but where the State exercised its coercive power to put a citizen on trial for serious crime formality was not out of place. The Parliamentary intention must be that a bill of indictment did not become an indictment until it was duly signed by the proper officer. If there were no indictment, both the language of the legislation and consistent judicial interpretation indicated that there could be no valid trial on indictment: Lord Bingham at paragraph 17-19. In the latter case, the document that was not signed was the document initiating serious criminal proceedings. That clearly demands proper formality. Consequently this decision cannot in our opinion be compared with a relatively minor failure to observe time limits in administrative procedures, even if those relate to the important question of a prisoner's treatment in custody.

[21] As we have indicated, we consider that these cases support the proposition that a failure to observe the time limits specified in rule 94(5) and (6) of the Prison Rules will not invalidate the continuing segregation. For this purpose, we are of opinion that the period covered by a late order was valid, that invalidity did not affect subsequent timeous renewals, and that a late order would operate retrospectively to cover a period prior to its grant. That is essential to secure the continuing validity of the order for segregation. As we have indicated, an order for segregation should only be made for serious reasons, such as maintaining order and discipline within the prison or ensuring the safety of a prisoner; and obviously if adequate reasons do not exist the order for segregation can be challenged. If adequate reasons do exist, however, it appears to us that the purpose of rule 94 can only be secured if the order for segregation remains valid. Consequently substantial compliance with time limits is sufficient.

Reasons for segregation
[22] In the circumstances of the present case we are quite satisfied that adequate grounds existed for the continued segregation of the reclaimer. We were referred to the intelligence reports that were founded on in making orders for the reclaimer's segregation. These covered the period from 7 October 2005 to 11 February 2010. The first such report, dated 7 October 2005, came from a source described as "always reliable" and the intelligence was described as "known to be true without reservation" (the highest evaluation of source and intelligence). The report narrated that a specified prisoner had been assaulted that day by three new Asian prisoners (who included the reclaimer); the prisoner who had been assaulted said that he would seek revenge for the attack. That is the report that led to the reclaimer's initial segregation. It is thus apparent that his segregation began because he took part in an attack on another prisoner. On 9 November 2006 the intelligence report recorded that prisoners had stated that if any of the murderers of Kriss Donald were to be located in the prison (Glenochil) they would be murdered; there would be a queue of prisoners wanting to do it. This report illustrates the high degree of ill-feeling that was directed towards the reclaimer and the other perpetrators of the murder of Kriss Donald. On 25 January 2007 a report was recorded of a heated verbal exchange between the reclaimer and another prisoner, with serious threats being issued; once again the evaluation of source and intelligence was rated at the highest level. It illustrates the risk posed to order and discipline in the prison if the reclaimer were put into mainstream conditions. On 9 March 2007 the intelligence report (with the second highest level of evaluation) recorded that, when it was mentioned that the killers of Kriss Donald would probably go into mainstream conditions in the near future, a prisoner replied without prompting that there had been a lot of discussion among prisoners about the murder and that it was clear that they would all be stabbed on site if ever they went into mainstream at Glenochil.

[23] On 13 July 2007 it was recorded, from a source described as "always reliable" that during a conversation with a prisoner the prisoner had stated that if the reclaimer came to a particular Hall "he will get done in"; there was an implication that if a member of staff attempted to help the reclaimer that staff member could be injured. The source was described as "very clear" in his comments. In August 2007, an intelligence report (with the highest evaluation of source and intelligence) recorded that the reclaimer should not be brought into the hall in question: "he'll get done big time"; "We'll go out of here in a bag". On 15 March 2008, once again with source and intelligence evaluated at the highest level, it was recorded that in a conversation with the reclaimer he had made threats that "if things did not start to go his way then someone (possibly staff) would be 'done in' by that he meant 'murdered'" (sic). On 24 April 2009 a serious exchange, including threats of stabbing from the reclaimer, took place between the reclaimer and a number of other prisoners. On 15 July 2009 threats of serious violence to the reclaimer were also recorded, although the source did not receive a high evaluation. On 9 October 2009 a source is recorded as stating that he believed that if the reclaimer went into mainstream he would be murdered. On 14 October 2009 a further report was received of serious threats to the reclaimer. On 1 December 2009 it was recorded, from an untested source, that it was common knowledge within the prison community that there was a contract on the reclaimer, which would be paid if he were attacked and lost an eye. On 11 February 2010, a further report disclosed that trouble was likely to ensue if the reclaimer were to be released into mainstream.

[24] These reports make it clear that intelligence was being received on a fairly frequent basis to the effect that the reclaimer would be seriously attacked if he were released into mainstream. They also include reports of an attack carried out by the reclaimer on another prisoner and threats made by the reclaimer. All of those reports had to be taken seriously by the prison authorities. The authorities are under a duty to take reasonable steps to ensure the safety of prisoners under their charge, and they would be open to serious criticism if they failed to take such reports seriously. The reports make it clear that threats to the safety of the reclaimer continued throughout the period from 2005 to 2010. If the reclaimer is correct that any failure to observe the time limits in rule 94 rendered further segregation unlawful, the result would be that the reclaimer had to be released immediately into mainstream conditions in spite of the threats made against him. We do not consider this submission to be in any way realistic. Furthermore, when an order for segregation is renewed, albeit late, that is a recognition by the relevant authority, Scottish Ministers, that there remains a sufficient reason for segregation. It would be quite unreal to fail to have regard to that acknowledgment of the continuing justification for segregation.

[25] The manner in which the intelligence reports were acted on appears from the orders to segregate the reclaimer made under rule 94. These were available as productions. The orders make it clear that proper consideration was given to the conditions specified in rule 94(1). In each case detailed written reasons for the making of the order are set out. By way of illustration, we will refer to five of these orders. The first Governor's order was made on 10 October 2005. The purpose of removal was stated as being the maintenance of good order and discipline and protecting the interest of a prisoner. The detailed reason states that the reclaimer had been admitted to the Segregation Unit on 7 October pending adjudication for assaulting another prisoner. The assault on that other prisoner was so severe that he required hospital treatment. It had been highlighted that this was a racially charged attack and one that would have repercussions for the reclaimer. It was noted that the reclaimer was one of three prisoners currently on remand within Barlinnie for the murder of a 15 year old white male. That crime had caused highly racially motivated feelings within the local remand population and has rendered the reclaimer a target for retribution from other prisoners. The reclaimer had refused protection. It was therefore seen as the safest option for him to remain within the Segregation Unit to enable the authorities to maintain good order and discipline and to ensure the safety of others, and also to allow the authorities to investigate alternative arrangements as to the safest and most appropriate environment for the reclaimer. Orders in broadly similar terms continued until the reclaimer was put on trial. At this stage it was hoped to return the reclaimer to mainstream prison conditions; this appears from, for example, a request for Scottish Ministers' authority to continue segregation dated 12 October 2005, which followed on from the previous Governor's order.

[26] After the reclaimer had been tried and sentenced, a further order under rule 94 was made on 9 November 2006. On this occasion the purpose of removal was stated to be maintaining good order and discipline. It was noted that the reclaimer had been admitted to the Barlinnie Segregation Unit on 9 November, having received a life sentence on the previous day. It was stated that the crime had caused highly racially motivated feelings within the local prisoner population and had rendered him a target for retribution from other prisoners. The reclaimer was noted as being aware of the reasons that he was currently housed within segregation and as appreciating that if he were to be located within any residential accommodation at that time it would result in his being a target of assault and abuse. The orders for segregation continued on a generally similar basis. By way of example, on 6 September 2007 Scottish Ministers granted a renewal of authority for one month. The proposal for the extension, which is dated 5 September, states the reasons as maintaining good order or discipline and protecting the interests of a prisoner. The reason for the application is stated to be the reclaimer's crime, a racially motivated murder upon a youth. It was recorded that attempts had been made at reintegration at Shotts Prison, but these resulted in protests and information was received that the prisoner population were prepared to assault the reclaimer should management continue to try to reintegrate him. Local management was of opinion that it was not safe to try any further reintegration at that time. The reclaimer was given an opportunity to comment on the reasons for the request, but on this occasion refused to do so. This point appears to us to be of some importance; the Scottish regime gives segregated prisoners the opportunity to make representations, as a matter of course. If the prisoner chooses not to do so, he clearly cannot complain that his views were not taken into account.

[27] We were referred to a further request to Scottish Ministers for continued segregation dated 18 January 2008. On this occasion it was noted that there was still considerable bad feeling towards the reclaimer due to the nature of his offence from a lot of the prison population, and the authorities could not make any guarantees about his safety within a mainstream environment at Barlinnie. Similar indications are found in the request dated 17 December 2008. A further request, this time relating to Glenochil Prison, was dated 12 May 2009. On this occasion the purpose of the application was said to be maintaining good order or discipline. It was recorded that the reclaimer had transferred to Glenochil on 13 March, a move agreed by senior management of the Scottish Prison Service as part of his management plan. The reclaimer had fully complied with the segregation regime, but it was noted that he did not share the concern for his safety from other prisoners currently expressed by prison management. At that time staff and local management were considering the reclaimer's suitability for management in association with other prisoners at Glenochil.

[28] Yet a further request for an order from Scottish Ministers under rule 94 was made on 12 February 2010. On this occasion it was noted that the reclaimer had been held under rule 94 for a considerable time to allow the maintenance of good order and discipline within the prison owing to the threat of repercussions over his crime. Management at Shotts Prison had considered possible reintegration, but there was resistance from prisoners in other halls to the plan, which led management to believe the threats that led to the reclaimer's initial segregation were still live. It was therefore decided to continue segregation. It was recorded that during the most recent rule 94 case conference the reclaimer had stated that he felt that his segregation was a form of punishment and that he was being held there on the basis of punishment and "torture". That was rejected by the management at Shotts Prison. Segregation for a further month was requested. It was indicated that during that period the management and intelligence unit at Shotts Prison would conduct a feasibility study into reintegration within the prison. It was emphasized that a previous attempt at reintegration had failed because of a "prison wide reluctance" to accept the reclaimer from the prisoner population. Any attempt at reintegration would take account of the views of the prison population at Shotts Prison.

[29] It is clear from the requests for rule 94 orders from Scottish Ministers that detailed consideration was given to the reasons for segregation on each occasion when it was requested. Comments were invited from the reclaimer. Furthermore, the reasons were backed up by intelligence reports, which suggested that there was a significant threat to the reclaimer from other members of the prison population. That threat continued throughout the period of his segregation. On that basis, we are of opinion that the segregation of the petitioner was fully justified and was entirely in accordance with the requirements of rule 94.

[30] Before leaving this part of the case, we must mention certain further matters. First, in the grounds of appeal it is stated that there was "wilful disregard" of the terms of the Prisons Rules. No detailed particulars are given of this allegation; no evidence is adduced to suggest that either the prison governors or the Scottish Ministers deliberately disregarded the terms of the rules, or acted in any way in bad faith. In these circumstances we consider this allegation to be wholly unjustified. Secondly, it is further stated in the grounds of appeal that the Lord Ordinary failed to have regard to the purpose of the time limits in rule 94. These were not simply to provide a level of oversight to local prison management but recognized the need for a structured and protective framework for the legal regulation of prisoners who were subjected to segregation. In our opinion the Lord Ordinary had proper regard to the purpose of the relevant provisions of rule 94, as we have indicated at paragraph [17] above. He made it clear that he was following a purposive construction of the rule, having regard to the context in which segregation arose.

[31] In conclusion, we should note that the decisions that were made late do not appear to have caused any prejudice to the reclaimer. The delays were short, amounting in total to a period of approximately two weeks. Furthermore, if Scottish Ministers had refused to grant an extension when the request was made, the probable result would have been that the process of segregation would have started again with a fresh order under rule 94. The reasons for segregation still existed. In addition, returning the reclaimer to mainstream when threats had been made against him could clearly have had very serious consequences for him. If he had been attacked and seriously injured or even killed, Scottish Ministers and the prison authorities would undoubtedly have been blamed for not taking adequate measures to safeguard him. In our opinion, faced with a dilemma, they chose the best course of action that was available.

Article 3 of the European Convention on Human Rights
[32] Article 3 provides that no one should be subjected to torture or to inhuman or degrading treatment or punishment. The reclaimer contends that his rights under this article have been infringed by his continuing segregation, for a period in excess of four years. In our opinion this claim is manifestly unfounded. This is clear from consideration of the case law in the European Court of Human Rights on article 3. It must, of course, be borne in mind that the approach of the European Court of Human Rights is strictly casuistic, without any binding doctrine of precedent. Nevertheless the decided cases give an indication of the sort of circumstances that may reasonably be regarded as giving rise to a breach of the article.

[33] Perhaps the leading case is Ramírez Sánchez v France, (2007) 45 EHRR 49. That case involved an applicant, popularly known as "Carlos the Jackal", who had been detained in connection with a series of terrorist attacks and was subsequently convicted of murdering police officers and sentenced to life imprisonment. He was taken into custody in August 1994 and was held in solitary confinement until 17 October 2002, in a rundown, poorly insulated cell with an area of less than seven square metres. He had no contact with other prisoners or with prison wardens, and was only allowed to leave his cell after other prisoners had returned to theirs. His sole activity outside his cell was a two hour daily walk in a walled-in mesh covered area. His only recreational activities were reading newspapers and watching television, and his only visits were from his lawyers (one of whom was his wife) and, once a month, from a priest. The regime was prolonged on a three monthly basis pursuant to repeated decisions taken by the prison authorities. The reasons given for this treatment included the danger from the appellant, the risk of escape, the need to prevent communication with other prisoners, and the need to maintain order and security. Despite these rather extreme conditions, which were certainly very much worse than anything faced by the present reclaimer, the applicant's claim against France was rejected by the Strasbourg court. The general principles applicable to the case were stated as follows (at paragraph 117):

"Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Art. 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 and, in some cases, the sex, age and state of health of the victim. In assessing the evidence on which to base the decision whether there has been a violation of Art. 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".

Reference is made to earlier cases, where such elements as complete sensory isolation and complete social isolation were regarded as inhuman treatment. Nevertheless, the court considered that "the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment" (paragraph 123).

[34] Senior counsel for the reclaimer sought to distinguish the decision in Ramírez Sánchez on the ground that the applicant there was an international terrorist who had been responsible for a large number of murders. In our opinion this suggested distinction is wholly unfounded. The right in article 3 to freedom from torture or inhuman or degrading treatment or punishment is an unqualified right, a point that has been repeatedly stressed in the opinions of the Strasbourg court and, indeed, in the courts of the United Kingdom. Everyone is entitled to the benefit of article 3, no matter how serious the crime of which he has been convicted. For this reason we are quite unwilling to distinguish Ramírez Sánchez; that case is in our opinion a clear indication that the actings of the prison authorities in the present case are well short of the threshold for any infringement of article 3.

[35] In considering the application of article 3, it is important to have in mind the fact that the reclaimer's segregation was imposed in the interests of his own safety. Such a situation was considered by the European Court of Human Rights in Onoufriou v Cyprus, [2010] ECHR 24407/04. In that case the applicant had escaped from custody. He was recaptured, and following his return to prison restrictions were imposed on all those in the prison in consequence of his escape. The applicant was thereafter placed in solitary confinement in order, it was said, to protect him from other prisoners who were hostile towards him because of the restrictions that resulted from his escape. At a general level, the Court held as follows (at paragraph 70):

"[I]n order to avoid any risk of arbitrariness resulting from a decision to place a prisoner in solitary confinement, the decision must be accompanied by procedural safeguards guaranteeing the prisoner's welfare and the proportionality of the measure. First, solitary confinement measures should be ordered only exceptionally and after every precaution has been taken.... Second, the decision imposing solitary confinement must be based on genuine grounds both ab initio as well as when its duration is extended. Third, the authorities' decision should make it possible to establish that they have carried out an assessment of the situation that takes into account the prisoner's circumstances, situation and behaviour and must provide substantive reasons in their support. The statement of reasons should be increasingly detailed and compelling as time goes by. Finally, a system of regular monitoring of the prisoner's physical and mental condition should also be put in place in order to ensure that the solitary confinement measures remain appropriate in the circumstances".

On the facts of that case the Court concluded that the applicant's detention in solitary confinement was not justified. The reason given by the authorities was that it was to ensure his own protection. The Court observed (at paragraph 71) that it did not consider that this reason could justify the applicant's detention in solitary confinement. If that is looked at in isolation, it might appear to be a general proposition. In context, however, it seems clear that that statement is a reference to the particular facts of the case and is not advanced as a matter of general principle; the general principles applicable to solitary confinement are discussed in the earlier part of the opinion. The Court went on to state that it was not convinced by the respondent government's explanation for solitary confinement, namely the preservation of discipline and order and the protection of the interests of the applicant himself, given that the explanation was first advanced in observations to the Court. Consequently the Court concluded that the applicant was detained in solitary confinement for reasons which were unclear and which were never explained to him. That is quite distinct from the present case, where reasons were provided throughout the period of segregation and where it was clear that there was reliable intelligence to support the need for segregation.

[36] In Razvyazkin v Russia, [2012] ECHR 13579/09, the applicant had been held in solitary confinement in punishment cells in a correctional colony, for periods totaling approximately 25 months over three years. It was held that the applicant's repeated solitary confinement amounted to a violation of article 3: paragraphs 97-108. The Court stressed (paragraph 99) that, "for article 3 to come into play, the suffering and humiliation involved must... go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment". Further, the state must ensure that persons detained under conditions compatible with respect for his human dignity, and the manner and method of the execution of the measure should not subject to distress or hardship exceeding the unavoidable level of suffering inherent in detention. Moreover, health and well-being must be adequately secured. The Court and continued (at paragraphs 100-101):

"The prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.... Whilst prolonged removal from association with others is undesirable, whether such a measure falls within the ambit of Article 3 of the Convention depends on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned....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...should be resorted to only exceptionally and after every precaution has been taken".

On the facts of Razvyazkin the Court concluded that the applicant was routinely placed in solitary confinement punishment cells in the absence of any substantive reasons, in the absence of any objective assessment of whether the repeated application of the measure in question attained its goals, in disregard of the applicant's physical and mental condition and in disregard of the effect of long-term solitary confinement on health (paragraph 107). The applicant had refused to return to the strict regime unit where he had been placed, and was therefore treated as a "persistent rule-breaker", but apart from that it was impossible to understand whether any substantive reasons were put forward in support of solitary confinement; neither was it possible to ascertain whether any reassessment had been carried out. What the facts of the case exemplified, therefore, is a failure to give adequate reasons for solitary confinement and to establish that the need for such confinement was regularly reassessed. Those criticisms cannot be made of the present case.

[37] Razvyazkin makes it clear that, when a prisoner is placed in solitary confinement, the decision must be based on properly considered reasons and must be regularly reconsidered, as a matter of reality rather than form. Furthermore, factors such as the effect on the prisoner's health must be taken into account. Under the Scottish regime that applied to the reclaimer, however, it is clear that adequate reasons had to be provided and the decision was regularly reviewed, on a monthly basis subject to a short delay on some occasions. Reasons were given for the continued detention whenever it was renewed. We should comment on one statement in the opinion delivered by the European Court of Human Rights. At paragraph 101 of Razvyazkin it is stated that the statement of reasons for solitary confinement "will need to be increasingly detailed and compelling the more time goes by"; a similar statement is found in other cases, notably Onoufriou at paragraph 70. We have some difficulty in understanding what this means. Solitary confinement must always be justified by adequate reasons, and those reasons must be regularly reviewed. If there is a good reason, however, such as threats to the prisoner concerned, we have difficulty in seeing how greater detail can be given. Either the threat to the prisoner continues or it does not. If there is apparently reliable evidence that the threat continues, it is difficult to see that greater detail can be given: the threat is the same. Variations in wording should not be encouraged for the sake of form; it is the substance of the decision that matters, and if the substance remains the same we do not think that different wording must be used.

[38] In Horych v Poland, [2012] ECHR 13621/08, the applicant was classified as a "dangerous detainee" because he was charged with serious offences committed in an organized criminal group, and he was placed in solitary confinement. He had been kept in solitary confinement for more than seven years at the time of the decision of the European Court of Human Rights, and was still subject to such a regime. The requirements of article 3 in such cases were stated in terms very similar to earlier cases (paragraphs 85-86, 91-92). The court concluded (at paragraphs 102-103) that, while detention in solitary confinement on the ground stated was justified for a certain period, the duration and severity of the measures taken exceeded the legitimate requirements of security in prison and were therefore not in their entirety necessary to attain the legitimate aim pursued by the authorities. As with any case before the Strasbourg Court, the decision is fact-specific. It is clear, however, that the period of solitary confinement greatly exceeded that in the present case. Furthermore, it is perhaps noteworthy that for the first three years the applicant had not even been put on trial.

[39] Głowacki v Poland, [2010] ECHR 1608/08, was another case in which the applicant was subject to the Polish "dangerous detainee" regime; he had been charged with numerous offences, including armed robbery, and there was reference by the relevant authority to "serious lack of moral character". It was held by the Strasbourg Court that the original decision imposing that regime on the applicant was a legitimate measure, warranted by the seriousness of the charge that he faced and the fact that he was a habitual offender and had previously escaped from a remand centre. Nevertheless, while those circumstances could justify the imposition of the special regime for a certain period, even a relatively long one, they could not suffice as the sole justification for its prolonged continuation. The Court observed (paragraph 96) that with the passage of time the procedure for review of the applicant's status became a pure formality, limited to a repetition of the same grounds in each successive decision. Counsel for the present reclaimer submitted that that was a feature of the grounds that were given by the Scottish prison authorities for his continued segregation. Nevertheless, for reasons discussed in detail below, we are of opinion that the Scottish authorities gave proper consideration to the reclaimer's position on a regular basis, and were in possession of continuing intelligence about threats to him from other prisoners. Thus Glowacki can be readily distinguished.

[40] The same can be said about Borodin v Russia, application no 41867/04, 6 November 2012, where it was held that the domestic authorities had valid reasons for the applicant's isolation (the applicant had strangled another inmate in his cell and had threatened three other inmates). Nevertheless, the Russian authorities did not review the applicant's solitary confinement, and there was nothing to suggest that there existed a reliable system to ensure that he was not confined beyond the period authorized, nor was he given any opportunity to express his views or to challenge the decision to place him in solitary confinement. In the present case, however, the reclaimer's position was regularly reviewed, as a matter of substance, and he was given an opportunity to express his views.

[41] We were referred, somewhat briefly, to two further cases on article 3. In AB v Russia, (2012) 55 EHRR 4, the Court found a violation of article 3 when the applicant was kept in solitary confinement for a period of three years. Nevertheless, it is clear that the reason for the decision was the state of the applicant's health; he suffered from HIV, and the Russian authorities had failed to take proper account of his medical condition. In Csüllög v Hungary, [2011] ECHR 30042/08, a violation of article 3 was found in a case where the applicant had been detained for 25 months under a special regime which involved complete isolation in his cell, which he was entitled to leave daily only for an hour in the open air and a few times per week for exercise. He had very limited contact with visitors, he was handcuffed every time he left his cell, and he was subject to a number of petty restrictions. The Court held that there was nothing to indicate that the applicant would incite disorder in the prison, or that he was dangerous. Moreover, no substantive reasons had been given by the authorities when the solitary confinement was applied for or extended. The case is accordingly plainly distinguishable from the present case.

[42] Counsel for the reclaimer further referred us to the decision of the Strasbourg Court in Lelièvre c. Belgique, Requête no 11287/03, a case that is only reported in French. We did not find this case of assistance. It is concerned with article 5(3), not article 3. The passage to which we were referred (paragraph 104) is concerned with the inadequacy of the reasons given by the national judicial authorities for the continued detention of the applicant. That has no bearing on the present case.

Application to the present facts
[43] When the principles recognized in the foregoing cases are applied to the reclaimer's circumstances, we have no hesitation in concluding that there has been no breach of article 3 of the European Convention on Human Rights. While the segregation of the reclaimer continued for a total period of four years and eight months, cases such as Ramirez Sanchez make it clear that solitary confinement for such a period will not of itself be sufficient to violate the article: see the Lord Ordinary at paragraph [107]. For solitary confinement to be permissible in terms of article 3, a number of other conditions must be satisfied, but we are of opinion that all of these are met in the present case. First, there was a proper purpose in the segregation, namely to protect the reclaimer from threats of violence by other prisoners. The evidence for those threats came from intelligence reports, which are dealt with at paragraphs [22]-[24] above. As a secondary reason, if the reclaimer were attacked and responded in kind, that would be a clear threat to good order and discipline in the prison. The prison authorities were clearly entitled to take steps to prevent any such outbreak of violence. Secondly, procedural safeguards existed to review the reclaimer's segregation, to ensure that it was still justified by the intelligence available to the prison authorities. Such reviews took place at approximately monthly intervals. Moreover, it is clear on the facts that such review was conducted as a matter of substance, not merely as a matter of form, and the reclaimer was given an opportunity to comment on the reasons for continued segregation that is clear from the requests for orders and relative requests referred to at paragraphs [25]-[29] above. Thirdly, reasons were given for the continued segregation. While these were largely repeated, the primary reason for segregation remained the same: to protect the reclaimer from threats of violence. It is difficult to see how that reason could have been elaborated to any great extent, at least to far as substance is concerned. Fourthly, the reclaimer was not subjected to total isolation. He had access to the prison telephones, which he used regularly; and he was entitled to receive regular visits. In addition, he was given facilities for regular exercise, both outside and in a cardiovascular gym, and he had a television in his cell: see paragraph [13] above. Fifthly, his health was kept under review; this was not disputed.

[44] In view of all of the foregoing features we are of opinion that the reclaimer's segregation was a proportionate response to the threat to his safety and the secondary threat to discipline within the prison. The requirements set out in the Strasbourg case law, for example those found in Onoufriou at paragraph 70 (see paragraph [30] above), are all satisfied. The Lord Ordinary considered this matter at length, and we are in entire agreement with his reasoning at paragraphs [98]-[108] of his opinion. It was submitted that, as time passed, the reasons given to justify segregation became routine and repeated, and therefore "slack". We have observed that the intelligence reports throughout the period of segregation suggested that the reclaimer was under threat of violence from other prisoners. There was also a clear risk that he would become involved in fights with other prisoners, threatening good order within the prison. Those matters did not change. In those circumstances there was no reason why the reasons given should change. This assumes that proper review took place, but on the documentation provided we are quite satisfied that it did.

[45] In conclusion, we should note two further submissions in the reclaimer's grounds of appeal. The first is that there was no independent judicial authority to review the merits of the reasons for segregation. This is simply incorrect. Indeed, the present proceedings demonstrate that segregation orders can be challenged. It is true that on earlier occasions legal aid was refused for a challenge but, as the Lord Ordinary notes (paragraph [106]), this did not contribute to the reclaimer's segregation. It was submitted that there were no procedural safeguards governing segregation, but once again this is plainly incorrect. Rule 94 lays down a procedure for segregation, and as indicated above we are of opinion that the prison authorities and Scottish Ministers have substantially complied with that procedure. The fact that time limits were occasionally exceeded does not appear to us to be material, for the reasons discussed earlier in this opinion. The second submission is that Scottish Ministers, by their decisions (made between 1995 and 2003) to close so-called "small units", had fettered their discretion in relation to alternatives that were available for dealing with prisoners such as the reclaimer. On this matter the Lord Ordinary was referred to a report from Professor Coyle which was critical of the decision taken to close the "small units", or special units, that existed in certain Scottish prisons to deal with dangerous prisoners and those who require to be removed from association for their own safety. The Lord Ordinary held that, even if it were the case that the decision to close special units was regrettable and that it would have been desirable to continue with similar facilities, that did not mean that there had been a breach of article 3. We agree with that view. In considering whether there has been a breach of article 3, it is quite inappropriate in our opinion to consider a decision made several years previously to alter the facilities in Scottish prisons. If we were to criticize such a decision, we would need a great deal more information than is available. Conditions in prisons may have changed, and the reasons for closing the special units would require to be explored in detail.

Article 8 of the European Convention on Human Rights
[46] Article 8 of the Convention protects the right to respect for private and family life; it is private life that is relevant in this case. This right is qualified, in that article 8(2) provides that there shall be no interference by a public authority with the exercise of this right "except such as is in accordance with the law and is necessary in a Democratic society... for the prevention of disorder or crime... or for the protection of the rights and freedoms of others". The respondents have accepted that article 8 is potentially relevant to the present case. On behalf of the reclaimer it is contended that his extended segregation involved an unjustified and disproportionate interference with his right to private life. That contention is resisted by the respondents. In our opinion it is wholly unfounded.

[47] In the first place, reference was made to the existence of the Executive Committee for the Management of Difficult Prisoners ("the ECMDP"). On behalf of the reclaimer, it was submitted that this was a non-statutory body with no basis in the prison rules; that the ECMDP was the body that was effectively charged by Scottish Ministers with making decisions about the reclaimer, albeit in conditions of secrecy; and that consequently the procedures followed in reality did not comply with the statutory requirements of the Prison Rules. This meant that the reclaimer's segregation was not in accordance with law. We reject this argument. The Lord Ordinary, at paragraph [121] of his opinion, expressed the view that the role of the ECMDP did not fit easily within the structures laid down in the prison rules. Local prison governors look to that body for guidance. Nevertheless, he noted that it was plain that both local governors and Scottish Ministers were satisfied that the reclaimer should not be in the mainstream prison environment. The appropriate procedure was followed at the end of each month. At paragraph [122] of his opinion the Lord Ordinary noted that the ECMDP was a national committee looking at strategic problems caused by the apparent need for the reclaimer and his co-accused to be removed from association with other prisoners over a lengthy period. The view was taken that it would be best not to hold the reclaimer in one prison for an especially long period. A decision of that nature obviously required a national perspective and strategy. This was provided by the ECMDP. The Lord Ordinary notes that there was no suggestion that the ECMDP was made up of persons who were not qualified or not appropriate to offer advice on such matters. On that basis he considered that there was no violation of the reclaimer's rights under article 8. We agree. The Lord Ordinary found that the decisions relating to the reclaimer's segregation were taken properly by prison governors and Scottish Ministers, in accordance with the Rules. It is clear from his findings that the role of the ECMDP was essentially advisory, to take a strategic view as to how the reclaimer and his co-accused should be dealt with within the prison system. A national perspective was required on that matter. For that reason we consider that the involvement of the ECMDP in no way subverted the legal position.

[48] Counsel for the reclaimer further submitted that, in determining whether that segregation was a step "necessary" in the interests of the prevention of disorder or crime or the protection of the rights and freedoms of others, it was necessary to determine whether the infringement involved more than minimal interference. This is essentially an argument based on proportionality. We do not doubt that the issue of proportionality is highly relevant to the application of article 8, and in particular to the question of whether interference with private life is necessary to prevent disorder or crime or to protect rights and freedoms. Nevertheless, we are of opinion that the measures taken in the present case were clearly proportionate. Threats had been made to attack and even kill the reclaimer. Information to that effect came from what appeared to be credible and reliable intelligence sources. As we have already observed, the prison authorities and Scottish Ministers were under a duty to take reasonable steps to ensure the reclaimer's safety while he was in prison. Consequently the threats had to be taken seriously. The only practicable way of dealing with them was segregation. The reclaimer, when given the opportunity to make representations about continued segregation, indicated that he was willing to take his chances within the prison environment. If that had been permitted, however, it is obvious that there was a risk of disorder within the prison. The reclaimer was initially segregated because of an attack that he and others had made on another prisoner. He subsequently made threats against other prisoners, and it seems clear that he was willing to run the risk of attack because he thought that he could acquit himself well in a fight. In these circumstances we consider that the reclaimer's own wishes count for relatively little; it was important that the prison authorities should maintain order within the prison. We should add that we agree entirely with the reasoning of the Lord Ordinary on this matter at paragraph [123].

[49] In connection with article 8, it was further submitted for the reclaimer that domestic law did not provide sufficient protection against arbitrariness. The Lord Ordinary rejected that contention (at paragraph [120]); he pointed out that Scots law lays down a detailed regime for the segregation of prisoners, involving constant reviews, case conferences, applications for authorization from Scottish Ministers and the like. Moreover the reclaimer was kept fully informed, and his views were taken into account. His health was monitored regularly, and he remained entitled to visits from family and friends, even though for lengthy periods no one visited him. We agree entirely that the legal regime under the Prisons Rules provided full protection from arbitrariness. We accordingly reject this submission. It was suggested by counsel for the reclaimer that the procedural safeguards were construed in such a way as to rob them of any meaningful content, so that the framework was relegated to mere guidance. We consider this contention to be quite unfounded. The lengthy documentation that is available makes it quite clear that the continued segregation of the reclaimer was considered on a monthly basis, in as much detail as required, and with regard to any representations made by the reclaimer. The simple fact is that continuing threats to his personal safety were made. In those circumstances there was no alternative to segregation.

[50] Counsel for the reclaimer further submitted that in reality little thought was given to the reclaimer's continued segregation or to any real suggestion of bringing it to an end. This is said to be evidenced by the repeated content of the orders for segregation and applications for renewal. It is true that there is a considerable degree of repetition in these documents. Nevertheless, the reason for this is very obvious: the threats to the reclaimer continued, and for reasons that we have already discussed the prison authorities had to take them seriously. In these circumstances we can see no merit in this submission. Yet a further submission made on behalf of the reclaimer was that his two co-accused were returned to mainstream conditions in 2009. They too were said to have been segregated for their own safety. It is impossible, however, to draw any conclusions about the reclaimer from the treatment of his co-accused. Very little information is available about the co-accused, and that makes comparison impossible. The critical question is whether the segregation of the reclaimer was in accordance with the relevant provisions of Scots law and the European Convention on Human Rights. That depends on the treatment of the reclaimer, and the treatment of his co-accused has no bearing on it.

[51] For the foregoing reasons we will refuse the reclaiming motion.