Segregation in Scottish Prisons

Andrew Somerville, William Cairns, Ricardo Blanco, Samuel Ralston and David Henderson all complained of the use of segregation.  This involves the removal of a prisoner from mainstream accommodation to basic solitary confinement in austere segregation units.  They variously complained of:

  1. The prison rules provided for segregation initially for a period of 72 hours on the basis of “good order and discipline”.  This was being used routinely, the prisoners said, with no proper recording of matters to show a specific reason as to why it was necessary for a prisoner to be segregated
  2. There was no proper tier of review or appeal. In terms of the prison rules, at the expiry of the 72 hour period, segregation could be continued for a period of 1 month on the order of the Scottish Ministers.  Impermissible delegation of this function was made to officials.
  3. The segregation of the petitioners was in each of their own specific particular circumstances unreasonable and disproportionate.
  4. In certain of the petitioners’ cases the conditions with which they were detained were so extreme as to a breach of Article 3 of the European Convention of Human Rights which has a prohibition upon inhuman or degrading treatment or punishment.

The  matter was due to proceed to proof in October 2005.  The proof was converted to a diet of debate upon a technical aspect of the pleadings.  The petitioners were successful in persuading the presiding judge that the Scotland Act 1998 was a proper vehicle for their claims of violations of the convention.  That decision was appealed.  The Inner House of the Court of Session reversed the Lord Ordinary upon this particular matter.  They gave leave to appeal to the House of Lords.

The House of Lords by 3:2 to majority reversed the Inner House of the Court of Session and affirmed the decision of the Lord Ordinary in relation to the question of timebar.  The House of Lords dealt with other aspects including proportionality as a ground of judicial review and the procedure to be adopted when public interest immunity is claimed by the Government (as it was in this case).

Upon the cases being remitted back to the Inner House of the Court of Session and into the Outer House the Scottish Ministers made offers to settle the various practices which were the subject of challenge in the course of these proceedings were shortly after the commencement of proceedings altered substantially to meet the various complaints of the petitioners.

Many clients of Taylor & Kelly made complaints about segregation which were put before the Court and were sisted or frozen to await the outcome of these lead cases.  Many offers to settle these cases have now been made.

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