Segregation in prisons – can it be challenged?

What is segregation?

Segregation involves a prisoner being removed from their wing and being put on the segregation unit (often called 'the seg' or 'the block'). There, prisoners will be isolated from the rest of the prison, with a much reduced regime and often only half an hour or so out of their cells each day, during which time they will need to shower, exercise and make telephone calls.

This can be particularly distressing for individuals suffering from mental health problems or at risk of suicide or self-harm. According to a report by the Prisons and Probation Ombudsman ('PPO'), in the year 2013/14 eight prisoners killed themselves in segregation units in England and Wales.

An individual in prison can be segregated for a number of reasons, including their behaviour and the need to keep others safe, while awaiting an adjudication, as a punishment following an adjudication, or for their own protection.

Safeguards for segregation

There are a number of processes and safeguards designed to make sure that the individual remains safe and that there are proper reasons for the use of segregation powers. This should include regular checks by healthcare and a prison chaplain. It should not generally be used for those at risk of suicide or self-harm, although sadly this often happens.

One of the most concerning forms of segregation is for 'Good Order or Discipline', or 'GOoD'. All that is required is that a governor believes that there are reasonable grounds for believing that the prisoner's behaviour is likely to be so disruptive or actually cause disruption to the extent that keeping them on ordinary location is unsafe. There is no time limit for the amount of time someone can be segregated under GOoD. A recent successful Supreme Court case challenged the lack of safeguards, with the court acknowledging that some of the harmful psychological effects of isolation can become irreversible after just 15 days and that lasting personality changes often prevent individuals from successfully readjusting to life within the broader prison population and severely impair their capacity to reintegrate into society when released from prison.

The current rules requires that an officer of a managerial grade has to approve the initial segregation decision and then carry out reviews at 72 hours and 14 days, and then at least every 14 days. The Deputy Director for Custody for the prison's area, who is part of the Ministry of Justice, has to review and approve the segregation in time for the 42 day mark, and at least every 42 days thereafter. Where someone has been in segregation for 6 months, their case must be reviewed by the Director of Public Sector Prisons.

Challenging segregation - some practical steps

Because of the broad powers of prisons to use GOoD, it can be hard to challenge. There are a few ways in which prisoners can put themselves in the best position to get off GOoD, and also gather evidence for a legal challenge if necessary.

Prisoners should get the opportunity to comment on their on-going segregation at reviews, which they are entitled to attend in person. They can also write down anything they want to review board to consider, usually by way of an application or complaint (COMP1). The review board should consider the initial reasons for segregation, the behaviour and attitude of the prisoner since the last review, how they are coping with segregation and any mental health or self-harm concerns, and what the prison can do to be taken off the segregation unit, including setting concrete targets. They should also consider whether transfer to another prison is an option. Review boards can be an important opportunity for the prisoner to understand what is happening and put his view across.

Prisoners are entitled to get a copy of the initial decision and review paperwork, to help them understand why they are being segregated, what is being done to return them to the normal population, and what their behavioural targets are. This can be a useful tool to check whether the prison has thought the decision through properly and whether they are doing enough to get the person off the segregation unit within a reasonable timescale.

It may be helpful to get the Independent Monitoring Board ('IMB') involved - they can come and visit prisoners on the segregation unit and talk to them about their concerns, and they are entitled to attend review boards. This can be particularly useful for prisoners who have difficulties taking part in the review process, for example due to literacy or language difficulties.

Although there is no right of appeal against decision to authorise and continue segregation, prisoners can complain using the normal complaints procedure, starting with the COMP1 form. This should be marked as urgent. If no response is received or the response is inadequate, the prisoner can submit a complaint appeal, on the COMP1A form. If this is not successful, the prisoner can complain to the PPO, an independent body overseeing prisons in England and Wales, marking it as extremely urgent - although there is no guarantee that the complaint will be dealt with quickly. It is important to keep hold copies of all paperwork, including any complaints submitted.

If a prisoner being segregated has physical or mental health concerns, they should ask that a member of healthcare or the mental health team comes to see them and then comes to the review board.

If family members have concerns they can contact the prison directly and speak to the Safer Custody department of the Governor, although often with varying degrees of success.

Prior to the 42 day DDC review, the prisoner will get an opportunity to make written representations to the DDC about their on-going segregation. They should get copies of all the paperwork being submitted to the DDC.

Challenging segregation - when you need legal assistance

All too often, prisons do not carry out proper reviews or provide paperwork. Segregation units often fall below the standards required, leading to hardship and distress for the prisoners held there; this is particularly serious for those with mental health problems and issues such as personality disorders, and they can quickly deteriorate. Other prisoners may have been held on the segregation unit for some time and coped reasonably well, but feel that the prison either did not have a proper reason to segregate them in the first place or are not doing enough to get them off the segregation unit.

Where there is serious urgency or the individual has already exhausted the complaints process, the only option left may be to get legal advice. We can advise prisoners and their families on how best to challenge their on-going segregation. Often, this will be by writing to the prison and/or the DDC to threaten them with a judicial review application, asking the High Court to urgently review the lawfulness of the on-going segregation. If this is not successful, we may be able to apply for court on your behalf for judicial review.

Our team is experienced in challenging decisions of prisons and other criminal justice agencies by way of judicial review and understands the challenges faced by prisoners and their families. Ceri Lloyd-Hughes has particular experience in challenging the segregation of children and young adults. Although legal aid is generally not available to assist in making a COMP1 complaint or writing representations for the DDC, it is available for judicial review cases. We are happy to discuss all funding options.