By Ann Higgins
I was all ready to do a “puff piece” on my experiences of encountering the new EU arrangements for Brits entering the Schengen Zone (summary: even if, like me, you get trapped in the automatic gate afterwards, don’t worry, they will let you out) when I came across an article by Joshua Rozenberg about a very recent case brought against the Justice Secretary (both the current incumbent David Lammy and his predecessor Shabana Mahmood) under Article 3 of the ECHR, in which the applicant, Sahayb Abu, a prisoner serving a minimum life sentence for 19 years for terrorist offences, was successful.
Article 3 prohibits torture and inhuman or degrading treatment or punishment. The applicant, who already had a mental illness, claimed it had been breached by his being segregated from other prisoners from April to October this year, apart from about eight weeks when he was allowed to associate with one other prisoner. The background was the attack at a different prison by a different prisoner on three prison officers, who he tried to stab and at whom he threw hot oil. He is charged with three counts of attempted murder, which he denies.
Previously, these dangerous prisoners had been kept in separation centres to prevent them radicalising other inmates. After this attack a decision was made by the then Justice Secretary Shabana Mahmood that, for their safety, prison officers dealing with such inmates were to be issued with protective body armour (PBA) and that, in the meantime, these prisoners were to be segregated. This led to Abu spending 22 hours alone with very little contact with prison staff, mental health nurses, or prison chaplains, which he claimed had been severely detrimental to his mental health, citing auditory hallucinations, panic attacks, suicidal thoughts and acts of self-harm, as well as the lack of timely psychological intervention. This was supported by expert psychiatric evidence.
The judge found that the segregation regime had subjected Sahayb Abu to intense mental suffering, which went way beyond the inevitable element of suffering inherent in segregation, and the mental health support provided to Sahayb Abu had not mitigated his symptoms of trauma and distress.
Even though the segregation regime had a legitimate aim – to ensure the good order of the prison following the HMP Frankland attack and pending the arrival of PBA for all prison staff working with the separation centre prisoners – the impact on Sahayb Abu was so severe that it outweighed the risk that he posed to staff: it was not impossible to relieve Sahayb Abu of the stress, or some of the stresses, of the segregation regime without unduly compromising the safety of the staff working with him. Further information here.
Applications against the UK government under Article 3 are thankfully extremely rare. Apart from five cases about detention of immigrants brought against it under Article 3 some ten years ago, this is thought to be the first successful application for judicial review under Article 3 by a serving prisoner against the UK government. The importance of an overarching document setting out rights which apply to everyone in this country whatever they have done and whoever they are can surely not be over-emphasised – a right is only a right if it applies to everyone no matter what their crime or however much the Daily Mail disapproves of them. Yet very recently the government has set out plans for possible changes to the ECHR in its asylum and returns policy paper “Restoring Order and Control” published on 17 November 2025. Article 3 is briefly touched upon, but it’s not clear whether and/or what changes would be made. Reading the remarks of the judge in this case, one hopes that they would remain unaltered but as the prime minister states in his foreword to this document “the world has changed.” We can only hope that the UK values to which he refers will be maintained sufficiently to ensure that no further Article 3 applications against the UK government need to be made, let alone succeed.
