Segregation not unlawful when adopted for prisoner safety

Shahid v The Scottish Ministers [2014] ScotCS CSIH 18A (31 January 2014)


The Scottish Court of Sessions recently confirmed a decision of the Lord Ordinary, and held the use of segregation did not breach a prisoner’s rights, despite a lack of strict compliance with the rules governing segregation.


In late 2006, the Petitioner (Sahid) was convicted of a brutal, racially motivated murder of a 15 year old boy, and was sentenced to life imprisonment with a punishment part of 25 years.

Extensive media coverage of Sahid’s case generated strong ill-feeling towards him within the prison community. At various times during his incarceration, reliable sources confirmed Sahid had between £5,000 and £20,000 “on his head” and would “get stabbed”.

Apart from a short period during his trial, Sahid remained continuously segregated from other prisoners from November 2006 to August 2010, when he was allowed once again to associate with “mainstream” prisoners.

In Scotland, pursuant to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (Rules), Prison Governors and Scottish Ministers are responsible for segregation orders.

Sahid brought proceedings against the Scottish Ministers alleging that his segregation was contrary to the Rules and, separately, contrary to article 3 of the European Convention of Human Rights (ECHR), which provides protection against torture and cruel and unusual punishments, and article 8 of the ECHR, which protects the right to private life. He sought declarations that his segregation was ultra vires of rule 94 of the Rules and articles 3 and 8 of the ECHR.


Prison Rules: Lawfulness

The Court was required to consider the legality of Sahid’s segregation in light of the Rules governing segregation orders.

In Scotland, the power to segregate prisoners is contained in rule 94(1) of the Rules; this allows a Governor to make a segregation order for the purpose of:

  • maintaining good order or discipline;
  • protecting the interests of any prisoner; or
  • ensuring the safety of other prisoners.

Where a segregation order made by the Governor is to exceed 72 hours, segregation can only continue if Scottish Ministers grant written authority on the application of the Governor (rule 94(5)). The segregation authorised by Scottish Ministers can continue for one month, after which it must be reviewed (rule 94(6)).

The Court noted that association with other prisoners is normal in Scottish prisons. However, such association could not be described as a right “because the privilege of association may be withdrawn in accordance with the Rules”.

A significant body of material was produced on behalf of the Scottish Ministers. The material detailed threats made by other inmates against Sahid and outlined reliable information from informants that Sahid’s safety would be put at risk if he were housed in mainstream prison.

Given the extent of the threats made against Sahid, it was not practicable for the Prison Governors to segregate each prisoner involved in making the threats. Therefore, the segregation of Sahid was considered to be the only reliable means of securing his safety and ensuring compliance with the Governor’s obligations to protect him.

While it was common ground that on 15 occasions during Sahid’s segregation, segregation orders were signed late by the Scottish Ministers, the Court concluded that a mere failure to observe the time limits specified in rule 94(5) and (6) of the Rules would not invalidate Sahid’s continuing segregation. 

Article 3 ECHR

Sahid argued that his right not to be subjected to torture or to inhuman or degrading treatment or punishment pursuant to article 3 had been infringed.

In concluding that this claim was manifestly unfounded, the Court considered relevant case law, including the decision of Ramirez Sanchez v France, which found that harsher conditions than those experienced by Sahid were a justified infringement of the applicant’s article 3 rights. In that case, the European Court of Human Rights had noted that “the prohibition of contacts with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment.”

The Court also distinguished the case of Onoufriou v Cyprus, which concluded that solitary confinement had not been justified, because the reasons for the segregation had been unclear and had never been explained to the applicant prisoner.

In Sahid’s case, reliable intelligence supported the contention that he was segregated in the interests of his own safety. The Court therefore confirmed the segregation did not breach Sahid’s article 3 rights as there was a pressing purpose for the segregation, there were proper procedural safeguards in place and because adequate reasons were given.

Article 8 ECHR

Sahid also argued that his extended segregation involved an unjustified and disproportionate interference with his right to private life pursuant to article 8 of the ECHR. The Court concluded this argument was “wholly unfounded”.

Conversely, the Court found that the measures taken to protect Sahid had been wholly proportionate as threats had been made to attack and even to kill him, and this information came from credible and reliable sources.


In each state and territory within Australia, corrections legislation gives prison authorities general powers to segregate prisoners. Segregation of prisoners is largely justified on the basis of prisoner safety and for operational reasons.

Most recently, segregation of prisoners was considered in Queensland in the context of “bikie laws”, with the Supreme Court confirming that, despite a lack of adequate implementation in domestic law of:

  • article 7 of the International Covenant on Civil and Political Rights (ICCPR), which like article 3 of the ECHR prohibits cruel, inhuman or degrading treatment or punishment; and
  • article 10 of the ICCPR, which provides that all persons deprived of their liberty shall be treated with humanity and respect for the inherent dignity of the person;

these matters should be taken into account when sentencing a prisoner who is likely to be subject to a segregation order.

In Victoria and the Australian Capital Territory, where human rights legislation has been enacted, courts may also be required to consider a prisoner’s rights to be treated with humanity and to freedom from degrading treatment when considering the lawfulness of solitary confinement.

This decision is available online at:

Ashlea Hawkins is a lawyer seconded from Lander & Rogers to the Human Rights Law Centre.