ON APPEAL FROM QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
(LADY JUSTICE RAFFERTY DBE AND
MR JUSTICE COLLINS)
CO/8076/2013, CO/6316/2013, CO/6315/2013
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)
LORD JUSTICE DAVIS
LORD JUSTICE SIMON
|- and -
|THE SECRETARY OF STATE FOR JUSTICE
CATHRYN MCGAHEY (instructed by the Government Legal Department) for the Respondent
Hearing dates: 28th October 2015
Crown Copyright ©
Lord Justice Davis:
The background facts
The Prison Rules and the Policy on Searches
(1) Prison Rule 41
(1) Every prisoner shall be searched when taken into custody by an officer, on his reception into a prison and subsequently as the governor thinks necessary or as the Secretary of State may direct.
(2) A prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed.
(3) No prisoner shall be stripped and searched in the sight of another prisoner, or in the sight of a person of the opposite sex."
We were also referred to Rules 10, 64 and 71 but they are, I think, of limited relevance for present purposes.
(2) The Corston Report
"Strip-Searching Women in Prison
3.18 In order to implement the new gender duty, I have recommended in Chapter 2 that the development of gender specific policies and procedures should be given priority by the Prison Service and other criminal justice public bodies. There is one particular aspect of entrenched prison routine that I consider wholly unacceptable for women and which must be radically changed immediately in its present form. This is the regular, repetitive, unnecessary use of strip-searching. Strip-searching is humiliating, degrading and undignified for a woman and a dreadful invasion of privacy. For women who have suffered past abuse, particularly sexual, it is an appalling introduction to prison life and an unwelcome reminder of previous victimisation. It is unpleasant for staff and works against building good relationships with women, especially new receptions. I well understand that drugs and other contraband must be kept out of prison and that there may be a case for routine strip-searching on first reception into prison. But even this procedure is dubious for women given that drugs can be secreted internally, rendering strip-searching ineffective in any event, as routine internal searching is already seen as unacceptable. A group of women in one prison, including some who suffered domestic abuse and some who had not, described strip-searching as making them feel embarrassed, invaded, degraded, uncomfortable, vulnerable, humiliated, ashamed, violated and dirty."
She went on to describe one particular example (where a female prisoner had described being routinely strip-searched every day on her return to an open prison). She then went to record that it was "very rare indeed" for anything illicit to be found as a result of strip-searching women. At paragraph 3.21 she referred to the availability of detection equipment for drugs. In the course of that paragraph, she said:
"I am sure that for women strip-searching could more appropriately be done randomly; or where individual risk assessments make it necessary; or on intelligence-based information."
So in that passage, among other things, not only is searching for cause accepted but also a distinction between random searching and routine searching seems to be made.
"Strip-searching in women's prisons should be reduced to the absolute minimum compatible with security; and the Prison Services should pilot ion scan machines in women's prisons as a replacement for strip-searching women for drugs."
(3) Prison Service Instruction 67/2011
"Individual staff may carry out more detailed levels of searches in specific cases on suspicion or receipt of intelligence."
"Staff should be aware that searches, especially full searches, can be embarrassing and difficult experiences for prisoners. Staff must, in particular, bear in mind the impact searches may have on prisoners who may be at risk – see PSO 2700, Suicide Prevention and Self-Harm Management" (emphasis in the original).
"Women prisoners must not be full-searched as a matter of routine but only on intelligence or reasonable suspicion that an item is being concealed on the person which may be revealed by the search. Full searches must be conducted in accordance with the correct procedures, at Annex B, paragraph 23. The procedure for searching women prisoners is different to that used to search men and women visitors and staff (as set out at Annex B), and consists of two levels. Level 1 involves the removal of the woman's clothing apart from her underwear; level 2 involves the removal of all of the woman's clothing including her underwear – Annex B, paragraph 23. Level 2 of the search must only be applied if there is intelligence or suspicion that the woman has concealed an item in her underwear or if illicit items have been discovered about the woman's person during level 1 of the search."
"She should explain the need for the search and each step, taking into account any cultural or religious sensitivity."
"A full search will only be considered appropriate:
- Where there is intelligence whether by word of mouth or SIR.
- Suspicious behaviour by the woman
- Sight of what appears to be an object concealed."
A Principal Officer or equivalent is required by the local instruction to authorise the search in the case of a "target" [as defined]. Elsewhere it is said in the local instruction that attempts to gain the co-operation of prisoners should be made. Vulnerability issues are identified. It is emphasised that "many women find a full search, for example, a very difficult experience"; and that every reasonable effort should be made to treat them with "decency and humanity".
The Grounds of Challenge
i) The policy exposes women to a significant risk of degrading treatment; and/or
ii) The policy fails to obviate in advance a proven unacceptable risk or serious possibility of a breach of a woman prisoner's human rights.
Ms Mountfield was particularly critical of paragraph 2.21 of the PSI in this regard. She said that it is entirely deficient. She said that the lack of specificity as to whether to search (and why to search) is to be compared and contrasted with the great specificity thereafter as to how to search. She also complained of the lack of a requirement to give reasons for a full body search.
Judgment of the Divisional Court
(1) Article 3
iii) First, the provisions of the PSI – as published policy – are to be read in a sensible and practical way. A number of authorities in this respect were cited to us. But I do not need to set them out here.
iv) Second, the provisions of the PSI are to be read as a whole.
v) Third, the bar is set relatively high for a challenge to a policy based on Article 3 grounds.
vi) Fourth, there can be no doubt that strip-searching is capable in itself of engaging Article 3 (and Article 8). Certainly the application of strip searches, particularly to those who are not prisoners or reasonably suspected of having committed a criminal offence, requires rigorous adherence to prescribed procedures and the need to protect human dignity. Correspondingly, a search carried out in an appropriate manner and for a legitimate purpose may be compatible with Article 3 and Article 8: see Wainwright v United Kingdom  44 EHRR 40, at paragraphs 41 - 43.
vii) Fifth, and reflecting the foregoing, the prison context is of central importance in this case. That context gives rise to questions of policy, and protection and safety and security issues, on which the assessment of those entrusted with formulating such a policy should be accorded a measure of respect.
"The trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3"
At paragraph 81 of his speech, Lord Hope referred to the risk required to be considered, for the purpose of the Article 3 argument, being one of "a serious risk of ill-treatment of the required level of severity". So the question here is: did the policy contained in the PSI expose female prisoners to a significant risk of treatment prohibited by Article 3?
(2) Article 8
Lord Justice Simon:
Lord Justice Moore-Bick: