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