England and Wales High Court (Administrative Court) Decisions

QUEEN v. MICHAEL CARROLL and ABDULLAH MUHAMMAD AL-HASAN (formerly known as ANTHONY STEELE) and SECRETARY OF STATE FOR HOME DEPARTMENT [2001] EWHC Admin 110 (16th February, 2001)

Case No: CO/1249/2000

and CO/3466/99

Neutral Citation Number: [2001] EWHC Admin 110

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand WC2A 2LL

Friday 16^th February 2001

Claimants

Defendant

MR JUSTICE NEWMAN:

Introduction

1. These claimants for judicial review are convicted prisoners who challenge the legality of being required to squat during a strip search at HMP Frankland in November 1998. In addition, they challenge the fairness of the disciplinary proceedings brought against them for having refused to obey the instruction to squat. On Friday, 20 November 1998, two dogs, trained in arms and explosives detection, gave positive indications within one of the prison's classrooms. The classroom was only used by prisoners from F and G wings, being the wings housing Category A prisoners. A search of the classroom and surrounding area revealed nothing. As a result the Governor (Mr Woods) ordered a search of the prisoners and their cells to be carried out on Monday. The order was relayed to Principal Officer Markham. He was informed of the indications given by the dogs and of the security implications in connection with the possible presence of explosives. It was not considered desirable or necessary for the search to be carried out over the weekend. Fewer officers are available at a weekend and it would be likely to generate a degree of resentment among the prisoners. Further, the prisoners on F and G wings did not mix with other prisoners and the classroom was not in use over the weekend.

2. On Monday, 23 November, PO Markham briefed a number of prison officers. He explained to them that the items being searched for were of a kind:

(1) that could threaten the security of the prison, and

(2) were of a nature that could be hidden in the anal or genital area of

prisoners.

He ordered officers to carry out a lock down search in relation to both F and G wings; the search was to be a strip search, involving the requirement to squat. Since no specific information was conveyed to the officers conducting the search, if asked by a prisoner why he was being required to squat, the officers could not: (i) inform the prisoner of the nature and grounds for the suspicion giving rise to the need for a search; or (ii) inform the prisoner of any grounds for suspicion against him over and above suspicion applicable to each and every prisoner on F and G wing.

The claimant, Abdullah Muhammad Al-Hasan, responded to the order to squat by saying that a reasonable suspicion was required to justify an order to squat. As a result of his refusal he was charged with the offence of disobeying a lawful order contrary to Rule 47, paragraph 19 of the Prison Rules 1984 (now Rule 51, paragraph 22 of the Prison Rules 1999). The claimant, Michael Carroll, asked for the grounds for the order to squat and was told that it had been ordered by the Principal Officer. He was also charged with the offence of disobeying a lawful order.

3. Mr Fitzgerald QC, leading counsel for the claimants, accepted that body searches, including strip searches, are a routine and necessary part of prison life. He did not submit, for example, that the common law rights enjoyed by detainees in police custody (not being prisoners subject to the Prison Rules) were retained by prisoners in connection with body and strip searches. In contrast he submitted, common law rights, equivalent to those enjoyed by persons in police custody, were retained in connection with an order to squat, because the requirement constituted such a gross intrusion upon an individual's rights and involved such a degree of humiliation that instructions to squat could not be regarded as lawful unless certain conditions were met. He submitted, by reference to cases to which I shall come, that the legality of a squat search was conditional upon the following:

(1) objective justification amounting to a compelling need for the search;

(2) the existence in the mind of the prison officer requiring the prisoner to squat, of a reasonable suspicion that an item may be secreted in the anal or genital area of the prisoner;

(3) the prisoner being given an explanation for the need to squat.

4. Mr Sales, counsel for the Secretary of State, accepted that squat searches are highly intrusive. He did not take issue with the submission that, for a squat search to be lawful, a compelling need for it had to exist. He submitted, relying upon evidence, that circumstances do arise in prisons giving rise to such a need to conduct a squat search. Further he submitted that on 23 November 1998 such a need existed. Mr Fitzgerald was not minded to contest the proposition that circumstances justifying a squat search could arise but submitted, in addition to the matters set out in paragraph 3 above, that:

(1) Section 47(1) of Prison Act 1952 did not confer a power to order a squat search, alternatively, if it did,

(2) on the occasion in question circumstances justifying the search did not exist.

Mr Sales did not dispute that an officer who requires a prisoner to squat must have a reasonable suspicion that the prisoner has an item concealed in the anal or genital area but he submitted, contrary to the contention of the claimants, that a suspicion which attached to a group of which the prisoner was a member could constitute a sufficient suspicion to require each and every prisoner in the group to squat.

I have said enough to introduce the issue of the legality of the squat searches on these claimants.

The Legal Framework

5. Searches in prison are provided for by Rule 39 of the Prison Rules 1964, as amended ("the Rules"), made pursuant to Section 47 of the Prison Act 1952 ("the Act"). Section 47 in its material part provides as follows:

"The secretary of State may make rules for the regulation and management of prisons .... and for the classification, treatment, employment, discipline and control of persons required to be detained therein."

Rule 39 of the Rules provides:

"(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."

The Secretary of State has made directions under Rule 39(1) in the form of the Prison Security Manual ("the Manual"). Chapter 17 provides:

"17.19 Prison Rule 39 .... allows for the searching of prisoners. Staff may use reasonable force to ensure prisoners comply with searches.

17.21 Only officers of the prison, or Prison Custody Officers, may take part in a strip search of a prisoner.

17.24 Staff must carry out searches in as seemly a manner as is consistent with discovering anything concealed.

17.69 Staff must accompany all searches of living accommodation in closed prisons with a strip search of the resident prisoner.

Paragraph 18 of the Manual gives guidance as to strip searching procedures. In particular, paragraph 18.15 provides as follows:

"(xiii) If you suspect there is anything concealed in the anal or genital area, ask [the prisoner] to bend over or squat."

The power conferred by S.47 of the Act

6. Mr Fitzgerald submitted that the generality of the power conferred by Section 47 is inadequate to provide authorisation for the degree of intrusion and humiliation involved in being subjected to a squat search. He questioned the cogency of the evidence disclosing the experience of the prison service and the Home Office but, in my judgment, the evidence establishes a sufficient basis for concluding that there is a risk that prisoners can and may secrete in their anal and genital areas, items such as drugs, explosives and parts of a weapon. I regard it as manifest that a power to search is within the intent and purpose of the " .... regulation and management of prisons .... and the discipline and control of .... prisoners". It is equally obvious that a search must be effective to achieve its purpose and that Parliament intended to confer a power which was effective to achieve the purposes of the section. Acknowledging that an instruction to squat is more intrusive and more of an affront than a strip search, it is nevertheless impossible to discern any legislative intention to distinguish between the two. Considered as a matter of fact, a squat search is in character a search, albeit a more extreme type of strip search. Support for Mr Fitzgerald's argument cannot be obtained from the terms of Section 47 which, in my judgment, are plainly wide enough to extend to conducting squat searches. I therefore turn to consider whether the law imposes any limitation upon the exercise of power under the section.

7. Mr Sales accepted that insofar as an exercise of power under S.47(1) involved interference with a fundamental right, the apparent breadth of the power was limited by the principle of legality (see R v Secretary of State for the Home Department ex parte Simms and another [1999] UKHL 33, [2000] 2 AC 115 ). Thus he accepted that the power to conduct squat searches, conferred by Section 47 and by the Rules can be exercised only where substantial objective justification amounting to a compelling need for its exercise existed. This concession (correctly made) dispensed with the need for Mr Fitzgerald to attempt to rely upon Article 8 of the ECHR, which in the light of the concession, would have added nothing to the point. Mr Fitzgerald's argument on the legality of squat searches proceeded therefore on the basis that:

(1) according to established principles of common law the searches were unlawful;

(2) according to public law principles of review, since a fundamental right was involved, substantial objective justification was required;

(3) the proper application of (2) above required the court to be informed by human rights jurisprudence.

8. It is to be observed that the Rules and the Manual demonstrate that the Secretary of State has exercised his powers so as to place limits on the exercise of the power to search. A search on reception into prison, which is manifestly rational, is specifically provided for, and thereafter searches shall be as the Governor considers necessary. Every search must be conducted in as "seemly" a manner as is consistent with achieving the purpose of the search. Further, the direction of the Secretary of State contained in paragraph 18 of the Manual constitutes a degree of protection against an arbitrary exercise of power, by requiring a reasonable suspicion to exist before an instruction to squat is given. But the issue raised by the claimants is whether the law sets further limitations.

9. Mr Fitzgerald submitted that it did, because the common law rights enjoyed by detainees in police custody (not being prisoners subject to the Rules) applied. He relied upon the cases of Lindley v Rutter [1981] QB 128 and Brazil v Chief Constable of Surrey [1983] 3 All E R 537 at 540J. In both cases the court considered the rights of persons taken into police custody. In Lindley the defendant had been taken into police custody upon arrest for disorderly behaviour. Police officers, acting in accordance with what they believed to be standing orders to search every female prisoner, in the face of a refusal by the defendant to be searched, searched her and in so doing removed her brassiere. In Brazil the defendant had been arrested and taken to the police station for acting in a manner likely to cause a breach of the peace. Having been told that everyone brought to the station was searched, she struck a policewoman. Later an officer suspected she was in possession of prohibited drugs, but without informing her of the suspicion or the new reason why she was to be searched, she was forcibly searched.

The cases establish that persons detained in police custody must not be searched unless there is a "very good reason" for doing so (per Donaldson LJ in Lindley at 135C) and are told "in substance the reason why" (per Robert Goff LJ in Brazil at 542G). In both cases emphasis was laid upon the affront to the dignity of a person which a search involved and the need for circumstances to exist to justify such an interference with personal rights. It seems to me to be undeniable that the circumstances arising from detention of a person in prison are wholly different from the circumstances under consideration in either of the cases, but I accept the rationale to be derived from each, namely that the circumstances must give rise to a need for the interference. As such the cases can be regarded as grounded in the concept expressed in the principle of legality. In my judgment the real question raised by Mr Fitzgerald was whether the claimants' civil rights in connection with squat searches have been expressly removed or are to be regarded as lost as an inevitable consequence of lawful detention in prison (see Raymond v Honey [1983] AC 1). Before turning to consider the arguments it may be convenient to deal with the argument on group suspicion.

10. The Code of Practice under PACE 1984 (Code A:1:6A) contemplates reasonable suspicion being based "upon reliable information or intelligence which indicates that members of a particular group or gang, or their associates, habitually carry knives unlawfully or weapons or controlled drugs". In my judgment neither the common law nor the Code of Practice has set limits to the circumstances capable of founding a reasonable suspicion sufficient to justify a search. Manifestly the circumstances surrounding detention in a penal institution are well outside ordinary circumstances and require special consideration. A prisoner is a member of a defined group and as such lives in the closed and circumscribed conditions attached to prison life. He is categorised for security purposes and is thereby more specifically grouped. The physical proximity in which prisoners live may be a critical factor in defining a group of prisoners and in assessing the risks to which the group gives rise. It is manifest that the circumstances in which a prisoner can be distinguished from the group in which he lives are, inevitably, reduced by these circumstances. In my judgment there is nothing irrational or illogical, nor anything legally flawed, in a prison Governor or the Secretary of State acting upon the basis of suspicion held against a prisoner as a member of a group of prisoners.

Should prisoners be told in substance why a squat search is required?

11. In Brazil. Robert Goff LJ held:

"I can see no difficulty in general terms in the officer explaining to the person no doubt in the simplest and most ordinary language, why the search is proposed. In my judgment, generally speaking, that ought to be done. Consistent with the speech of Viscount Simon in Christie v Leachinsky 1947 AC 573 at 587-588, there may well be circumstances where the giving of such reasons would not be necessary. To give an example, the circumstances may be such at it is perfectly obvious why a search is necessary."

As is well known, Christie v Leachinsky [1947] UKHL 2, was concerned with a citizen's right to freedom from arrest, which was held to include the right "to know on what charge or on suspicion of what crime he is seized". In Brazil the court concluded that a personal search imposed a restraint on a person's freedom. It is also an interference with the right to privacy under Article 8(1) of the ECHR. Following the same principle, the rights are protected and a person is only required to submit to a search if (generally speaking) he is informed of the reason for the search. The rationale is well expressed in a submission by counsel in Brazil (541g):

"If persons do not know why they are being searched, they have no basis on which to form a view whether or not that search is justified in the circumstances.

Plainly, if the rights involved are to have substance and integrity, the right not to submit to an unlawful restraint must be capable of being exercised. This is the principal reason why the citizen is entitled to be informed of the reason for arrest or search.

12. Mr Fitzgerald adopted the principles so as to apply them to prison life. He submitted that if prisoners were informed of the reason why they were being required to squat they could volunteer information about the whereabouts of the items being sought. Having regard to the degree of humiliation and intrusion involved in a squat search, it was conducive to the public good and to the good administration of the prison that it should be avoided if possible. Further, if prisoners are told, they are less likely or will have less cause to conclude that the request to submit to a search is an abuse of power. That too can only assist and further the maintenance of better management and discipline in prison. Thus he submitted, that contrary to compelling reasons existing for concluding that the common law rights had been lost, there were compelling reasons for holding they prevailed.

13. I have no doubt that the claimants believe prison officers abused their powers in requiring each of them to submit to a squat search. If occasions for such suspicion arising could be reduced, it would obviously be beneficial to the management of prisons. That said, the legal analysis must start with the fact that a prisoner " ... is lawfully committed to a prison and while there is subject to the Prison Act 1953 and the Prison Rules 1954. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime" (per Lord Jauncey, R v Deputy Governor Parkhurst, ex parte Hague 1992 l AC 58, at 176-G-H).

Pursuant to the regime (under the Act and the Prison Rules) searches on entry into prison take place. Prisoners in high security prisons are (given the risks they pose in general) routinely subject to strip searches. Their legality is not under challenge. The additional intrusion of a requirement to squat cannot be equated to depriving a free citizen of his liberty by arresting him or restraining him so as to conduct a search.

14. Although Mr Fitzgerald did not accept Re Baker and other Applicants (1992 8 NIJB 86) as sound authority, he accepted the principle that routine strip searches are legal because expressly authorised by the Act and the Rules. Mr Sales relied upon the terms of the judgment of Carswell J (as he then was) in that case, who held:

"But in my view the power conferred by Rule 9(1) is intended to be an unqualified power, and the governor is entitled to order a prisoner to be searched whenever he sees fit, subject only to contrary direction of the Secretary of State. It would, I think, be inconsistent with the position of a prisoner lawfully confined in a prison to import a qualification into the power of search which would permit him or her to decide whether the search order was validly given and the reason for it properly explained, to refuse to obey and to resist the officer directed to carry out the search. To permit this would tend to undermine prison discipline to a material degree, and I do not think that it was intended.

In any event, I consider that it was perfectly obvious to all the prisoners searched that the prison officers were searching for some unauthorised object or objects. That knowledge found sufficient notification of the reason for the search, if such notification was, contrary to my view, required. It was not incumbent upon the governor to have the prisoners informed of the exact nature of the object being sought, still less to divulge where the information came from that led him to decide to have the search carried out."

15. Mr Sales submitted that further reasons existed for it being contrary to the best interests of the regime of a prison for there to be a legal requirement to inform a prisoner of the reason why he was being requested to squat. No exhaustive list can be compiled, but they include the following:

(1) the suspicion may be based upon highly sensitive information from an informant;

(2) dissemination of the suspicion might itself give rise to a risk of unrest and disorder;

(3) if prisoners were to be told of the specific items being looked for, false information could be given so as to cause confusion; and

(4) if the contrary, the identity of items is not disclosed, any information which may be volunteered would in all likelihood be genuine;

(5) if it is not in the best interests of the prison for prisoners to be told, it is likely not to be in the best interests of searching officers that they should know. By their ignorance they are protected from the risk of aggression directed to its revelation and the risk of permitting the information to slip out.

16. I am not minded to accord particular significance to the point that giving prisoners an opportunity to refuse to obey an instruction creates such a threat to prison discipline that they should not be entitled to be given any information (see Carswell J), but I am in agreement that the circumstances in which prisoners are confined and are subjected to a search makes it obvious why they are being searched. Since the cases of Christie v Leachinsky and Brazil established this as an excepted circumstance to the application of the principle, its existence as a facet of prison life is a significant, if not determinative, pointer to the relevant right being taken away by necessary implication. In my judgment the matter is conclusively resolved against Mr Fitzgerald's submission by the countervailing factors identified in paragraph l5 above, which comprise a tabulation of considerations peculiar to prison conditions, which can be accepted as amounting to substantial objective justification for not informing a prisoner of the substance of the reason why a squat search is required.

Public Law

17. I was referred to a number of authorities where the legality of searches has been considered in the context of human rights legislation. In particular:

McFeeley v UK [1980] 3 EHRR 161

Weatherall v Canada [1988 l FC 369 at 395]

Soenen v Director of Edmonton Remand Centre (1983) 35 CR (3d) 206

Bell v Wolfish 441 US 520 (1979)

In McFeeley, the European Commission of Human Rights considered a number of complaints made by prisoners serving their sentences at HMP The Maze, Northern Ireland. Included in their complaints was a searching procedure which involves strip searching and squat searching. Such searches were carried out on the occasions when they were moved within the prison (which arose regularly because of the need to clean their cells). The Government's response included the claim that close body searches were considered necessary in view of the prisoners' ability to conceal objects in the rectum or within their private areas, which could constitute a danger to prison security. The Government's case was that such searching was both necessary and reasonable. The Commission stated:

"60. The Commission has taken into consideration the exceptional circumstances in the Maze Prison, in particular the dangerous objects that have been found concealed in the recta of protesting prisoners (such as razor blades, flints, matches, cigarette lighters); the fact that, in the past, protesting prisoners have used such objects for disruptive purposes (e.g., to burn the perspex shields used for window coverings); the serious risk that concealed letters might identify prison officers as potential assassination targets."

Later the Commission stated:

"While there can be no doubt that many prisoners find such procedures humiliating, the Commission is of the opinion that in the circumstances the level of mental or physical suffering is not such as to amount to inhuman treatment. Similarly, it does not consider that the degree of debasement or humiliation involved, particularly in respect of prisoners who must be aware by reason of their campaign of the substantial security threat posed, reaches the level of severity required for it to amount to degrading treatment."

In Weatherall v Canada it was held that one of the limitations on a prisoner's rights arising out of his conviction and imprisonment was his subjection to searches necessary for the security and good order of the prison. At page 395, Strayer J stated:

"... Nevertheless, such searches should be subject to some control to ensure that they are truly used for the purposes which justify this infringement of normal human rights. I have concluded that while there is a place for routine skin searches without the need for prior authorization specific to that search, and without the need for showing reasonable and probable cause to suspect the particular inmate searched to be concealing some forbidden item, the circumstances in which such routine searches are authorized should be laid down by Regulation. Such rules will have to be, in themselves, reasonable in identifying situations in which, by reason of probability of, or opportunity for, concealment of contraband, or the need for deterrence of smuggling, a routine strip search is justified in the public interest. As for non-routine searches, I can see no reason why there should not also be some legal rules providing for such situations. There might be, for example, a rule providing that, in case of an immediate and specific security or enforcement problem, a general skin search could be conducted of all or a certain group of inmates. This could arise, for example, where an inmate has been stabbed in a cell block and it is thought necessary to skin search all inmates there for the weapon. But where, apart from such routine or general skin searches, individual inmates are to be skin searched, there should be a rule requiring those conducting the search to have reasonable and probable cause for believing that the inmate in question is concealing some prohibited matter on his person. Where time or circumstances do not permit those conducting non-routine searches to obtain authority from a superior officer, there should be some meaningful requirement of review by such superior officer after the event."

In Soenen a remand prisoner complained about rectal searches:

"The applicant's third complaint is that sometimes members of the Detention Centre staff, who were searching for such things as forks, knives, or other objects, require the inmates who are sitting around their common area described above, to strip naked and bend over so that there may be a visual examination of the rectal area. The applicant recognises that strip searches are essential, but he contends the manner in which they are performed is humiliating, degrading and immoral, and constitutes a serious intrusion of privacy. He contends that before such a visual rectal examination takes place, there should be a reasonable suspicion of anal concealment of some item. Moreover, he contends, each individual inmate should be inspected privately so that he is not humiliated by being inspected in the presence of 23 other men."

The court went on to conclude:

"I find that this practice cannot be said to be cruel treatment, even assuming it is unusual, nor does it constitute an unreasonable search that would infringe Section 8 of the Charter. In my view a visual search of the rectum of a person just arrested, in the absence of reasonable and probable cause to believe that an object has been concealed anally, might be unreasonable and the violation of a reasonable expectation of privacy; but such a search is not unreasonable and is not a violation of a reasonable expectation of privacy in the case of a pre-trial detainee in a detention facility, provided that the visual search is conducted bona fide in a search for weapons or contraband and not for the purpose of punishment. Such searches may be in the absence of reasonable, probable cause to believe that the prisoner being searched has concealed an object in his body cavity."

In Bell and the Attorney General and others v Wolfish, inmates brought a class action on constitutional grounds in connection with various practices, including the practice of body cavity searches of inmates following contact visits with persons from outside the institution. Justice Rehnquist delivered the majority opinion of the court. He expressed the balancing exercise of ensuring that rights were subject only to such restrictions and limitations as was necessary in a prison, in the following way:

"There must be a mutual accommodation between institutional needs and objectives and the provisions of the Constitution.... Maintaining institutional security and preserving internal order and discipline are essential goals that may require limitation or retraction of the retained constitutional rights of both convicted prisoners and pre-trial detainees. Since problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions, prison administrators should be accorded wide ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security."

So far as rectal searches are concerned, it was held:

"Balancing the significant and legitimate security interests of the institution against the inmates' privacy interests, such searches can be conducted on less than probable cause and are not unreasonable."

The dissenting judgment of Justice Marshall could be heard in the arguments of Mr Fitzgerald. He stated:

"In my view, the body cavity searches of MCC inmates represent one of the most grievous offences against personal dignity and common decency. After every contact visit with someone from outside the facility, including defence attorneys, an inmate must remove all of his or her clothing, bend over, spread the buttocks, and display the anal cavity for inspection by a correctional officer.... This humiliating spectacle is frequently conducted in the presence of other inmates."

The judge referred to the Government position in these terms:

"Not surprisingly, the Government asserts a security justification for such inspections. These searches are necessary, it argues, to prevent inmates from smuggling contraband into the facility."

The learned Judge, in this particular regard, concluded that critical facts had been overlooked. In particular, he considered the fact that contact visits occur in a glass enclosed room and are continuously monitored by a corrections officer, make the suggestion that these occasions give rise to the passing of contraband, "a feat which would seem extraordinarily difficult". He thus concluded,

"Without question, these searches are an imposition of sufficient gravity to invoke the "compelling necessity" standard. It is equally indisputable that they cannot meet that standard."

18. I do not underestimate the degree of the affront to dignity involved in being required to squat. But under the Act and the Prison Rules, and according to the Manual, squat searches are not carried out routinely. They are only carried out when reasonable grounds exist to suspect that the prisoner is concealing an item in his anal or genital areas. Further, the Prison Rules require that all searches should be carried out in as "seemly" a manner as possible. The Rules prohibit the conduct of a squat search in the presence of other prisoners.

19. Each of the cases to which I have referred acknowledge the inherent tension "which exists between the rights or aspirations of prisoners to enjoy, as much as possible, standards of privacy and public decency equivalent to those outside prisons" (see Weatherall v Canada). In each case it can be discerned that the process of review has involved identifying the true character of the necessity and permitting the power and influence of it to interfere with prisoners only so far as was proportionate to the necessity and was thus consistent with the recognition to be accorded to the human rights involved. Mr Fitzgerald was inclined, in the course of his argument in reply, to be dismissive of the authorities from Canada and the United States of America, as incapable of providing insight into these matters. Baker, he submitted, preceded Simms and R v Secretary of State for the Home Department ex parte Leech 1994 QB 198. I do not share his view of the absence of benefit to be derived from the Canadian and American cases, but that said, I have very much in mind that the more fundamental the right interfered with, and the more drastic the interference, the more difficult becomes the implication "that powers exist or that rights have been taken away" (see Leech, p.209 D). The common thread in all the cases has been the search to find whether an objective need for the intrusion or interference with prisoners has been made out. Ultimately, judicial conclusions in other jurisdictions on different facts cannot be taken to decide the issues in this case. But in my judgment the questions and issues in relation to security and the management of prisons as presented by the Secretary of State cannot be regarded as irrational or incapable of providing substantial objective justification for squat searches without a prisoner being informed of the substance of the reason for the search. Further, insofar as it is necessary for the court to weigh the rationality of the respective arguments advanced under this head, in order to determine whether prisoners have necessarily lost their rights by reason of their status, it is appropriate to accord to the Secretary of State a measure of deference in balancing circumstances and in determining what is required (see R v DPP ex parte Kebilene [1999] WLR 972 at 993-4). It is significant that unlike the cases of Raymond v Honey and ex parte Simms and Leech, the balancing exercise in this instance involves regard being had to the interests of other prisoners and prison staff. For that reason the facts disclose a more complex exercise in reconciling personal rights and freedoms and the need for interference or restraint than appeared in those cases.

Having considered the cases in the human rights area and having in mind the aim of the Convention I am unable to detect from the content of the jurisprudence anything which leads me to conclude that there is any divergence between the domestic law and the ECHR.

Reasonable Suspicion

20. In my judgment the submission of Mr Sales, in this regard, is correct. Provided a senior officer has, before implementing the search and instructing officers to give orders to squat, the necessary information giving rise to reasonable grounds for suspicion, that is sufficient. There is no requirement that the searching officer has to be in possession of such information, it is enough if the searching officer has a suspicion as to concealment in the anal or genital area. I do not accept that the words in paragraph 18.l5(xiii) of the Manual, "If you suspect that there is anything concealed in the anal or genital area, ask him to bend over or squat", mean that the particular grounds for suspicion must be in the mind of the officer conducting the search. Further, for the reasons I have already given, there are sound reasons why it is in the interests of the officer and in the administration of the prison, for the officer conducting the search, not to know the precise reason why there is a need to request a squat search. It cannot be said that the searching officer did not have a suspicion or grounds for suspicion (see paragraph 2 above) and that there has been a breach of the Manual. All that can be said is that his suspicion was derived from an order and instructions from persons who had a better means of assessment of the position than himself. The purpose of the provision in paragraph 18.15(xiii) is to prevent arbitrary or capricious searches. That objective is achieved if it is only upon the instructions of a prison officer possessing the information giving rise to a reasonable suspicion, that squat searches are carried out. My conclusions are as follows:

(1) Circumstances can and do arise in prisons which are capable of creating a reasonable suspicion that prisoners have concealed items in their anal or genital areas.

(2) Where such circumstances present a compelling necessity for a squat search Section 47(1) and the Rules confer a power to conduct a search.

(3) A reasonable suspicion that prisoners have concealed items in their anal or genital areas must exist but it is not necessary that the officer conducting the search knows the facts giving rise to the suspicion as long as he has been informed of the existence of a suspicion formed by someone in possession of the facts.

(4) A reasonable suspicion that a prisoner has concealed items can be based upon his membership of a group in respect of which the suspicion exists.

(5) A prisoner is not entitled to be informed of the substance of the matters grounding the suspicion.

The facts of this case

21. Mr Fitzgerald submitted that the facts of this case demonstrated an excessive over-reaction to insubstantial and inconclusive information which, if capable of giving rise to any suspicion, objectively assessed, could not possibly have amounted to the suggested threat to security, the rights and interests and life of others in the prison, and what could be termed, "a security crisis". He submitted that it is well known that dogs give unreliable information and, as it happened, the dogs on this occasion did give unreliable information and for that reason the search, after it had been substantially embarked upon, was terminated. He did not submit (correctly in my judgment) that the prison authority and the Secretary of State should not be accorded deference in their assessment of what was needed in the best interests of the management, security and discipline in prisons. His fundamental submission, illuminated with the benefit of hindsight, was that there was no strong and pressing social need for the search to take place on the occasion in question.

22. There was information derived from searches, by dogs trained to detect arms and explosives, that such items may be present in the prison. However "fallible" dogs may be, their fallibility will not be established unless action is taken to investigate the validity of the information provided by them. It is obvious it cannot be ignored. There was no way of telling which of the prisoners on the wings might have the items. The items were of a kind that could be secreted in the anal or genital area. If any of them did have such items, such items could threaten the security of the prison, and the presence of such items was capable of being regarded as of the utmost gravity to the security of the prison, the safety of other prisoners and prison staff.

In my judgment the challenge to the necessity of the search fails.

23. For completeness, I should add that Mr Fitzgerald's Skeleton Argument (as opposed to his oral argument) contained two further arguments:

(1) that the claimants had a legitimate expectation that searches would be carried out consistently with the requirements of the Manual; and

(2) that Rule 39 infringed Article 8 because it is insufficiently precise.

As to (1), in the light of my conclusion above, the Manual was followed and, in any event, the Manual is not provided to prisoners so as to enable it to provide a basis for an expectation.

As to (2), notwithstanding that Article 8 was not relied upon, in the context of the prison environment, prisoners are well able to regulate their conduct having full knowledge of what is required of them.

The Challenge to the Adjudication Process

24. Mr Fitzgerald submitted that the adjudication process was unfair at common law for a number of reasons and was contrary to the ECHR ("the Convention"). He submitted the following constituted unfairness:

(i) The governor wrongly stopped questions in both the adjudications.

(ii) The governor was biased in the "institutional sense".

(iii) The governor wrongfully refused legal representation.

(iv) The Secretary of State, acting by the Directorate of High Security Prisons, responded in such brief terms to the representations made to it, that there had been a failure to give sufficient reasons for the decision.

So far as the Convention is concerned, it was submitted that:

(1) Article 6 was engaged and had been breached because the Governor was not independent and had an interest in the outcome which meant he was not impartial;

(2) that so far as the claimant Carroll is concerned, there had been a breach of Article 5(4); alternatively he had been unconstitutionally denied liberty, in that he had been ordered to serve two additional days by the governor and not by a court.

25. To support his argument in this part of the case, Mr Fitzgerald advanced a submission that the Convention had direct application. The steps in the argument were as follows. Section 7(1) of the Human Rights Act 1988 ("the Act") provides:

"A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by Section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings, only if he is (or would be) a victim of the unlawful act."

Next, Section 22(4) of the Act:

"(4) Paragraph (b) of sub-section (1) of Section 7 applies to proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that sub-section does not apply to an act taking place before the coming into force of that section."

Next Mr Fitzgerald submitted, that it was not the order to squat which was under challenge directly, but the finding of guilt following a disciplinary adjudication, which both the claimants sought to challenge. He submitted that the disciplinary adjudications were to be regarded as "proceedings brought by or at the instigation of a public authority".

Next he submitted that these proceedings by way of judicial review were, for the purposes of this particular argument, to be regarded as having the character of an appeal brought by the claimants in the proceedings which had been instigated by a public authority and the claimants were therefore entitled to rely upon the direct effect of the Convention in this court. Since both the adjudication proceedings took place before 2 October 2000, this last argument amounted to a submission that although the claimants could not rely upon the Convention, save to the extent that it informed the law at the hearings themselves, they were nevertheless entitled to rely upon the Convention on "appeal". For this last proposition, Mr Fitzgerald relied upon R v The Director of Public Prosecutions ex parte Kebilene and others, [1999] UKHL 43, 1999 3 WLR 972 at 982 B-D, and the following passage:

"Before I leave this part of the case it is necessary to refer to a sub-issue which arose on this appeal. Lord Bingham of Cornhill, CJ, adverted to the possibility of the trial resulting in convictions and appeals subsequently being lodged. He then observed, at page 187:

`If, at the time of the appeal hearing, the central provisions of the Act of l998 had been brought into force, the applicants would on appeal be entitled to rely on Sections 71(b) and 22(4) of the Act and the convictions (on the hypothesis of inconsistency between l6A and the Convention) would, in all probability, be quashed at some not inconsiderable cost to the public purse and no obvious advantage to the public weal'

On appeal to the House, but not in the Divisional Court, Mr Pannick argued that Section 22(4), read with Section 7(1)(b), is apt only to extend to the trial. It was an argument of some technicality. The language of the Statute does not compel its adoption and a construction which treats the trial and the appeal as part of one process is more in keeping with the purpose of the Convention and the Act of l998. It is the sensible and just construction. I would reject the argument advanced on behalf of the Director on this point."

26. Mr Fitzgerald submitted that Section 7(6)(a) of the Act had to be given a wide definition if the court was to give effect to Parliament's intent of ensuring compliance with the Convention. The broad submission he made was, that the purpose of the l998 Act was to enable United Kingdom citizens to engage the mechanism of the Convention to enforce their basic rights and that this was best achieved by reading the provisions widely so as to allow reliance on the Convention in all litigation which takes place after 2 October 2000, and which involves Convention arguments. In particular, this should be the approach where the matters should be regarded as criminal proceedings for the purposes of Article 6 of the Convention, whether or not those matters are regarded as criminal proceedings by the domestic courts. In his submission the disciplinary proceedings were properly to be regarded as criminal proceedings and not an adjudication as an act of management in the running of the prison. If he is wrong and the disciplinary proceedings are not to be regarded as proceedings within the meaning of the Act, then the argument does not get off first base. In my judgment his argument for the direct application of the Convention fails for at least two reasons.

(1) The adjudication before the governor did not constitute a proceeding within the meaning of Section 22(4) of the Act. Section 7(1) of the Act is concerned with proceedings in "an appropriate court or tribunal". Sub-section 2 provides that an "appropriate court or tribunal" means "such court or tribunal as may be determined in accordance with rules". The proceedings giving rise to these applications for judicial review were disciplinary proceedings of a domestic nature in the management of the prison. Section 22(4) was not referring to such proceedings but to legal proceedings. Section 7(6) provides,

"In sub-section l(b) legal proceedings includes -

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal."

The character of the proceedings before the governor were, from beginning to end, disciplinary. Notwithstanding Mr Fitzgerald's argument that the consequences were a loss of personal liberty, the character of the proceedings did not change according to this consequence.

(2) Secondly, in any event, the adjudication proceedings came to an end after the review by way of appeal, and it is elementary that judicial review is not an appeal.

Notwithstanding my conclusion, I have no doubt that because this part of the case was argued by close reference to the Convention, and because the state of affairs, the subject matter of the challenge, continue, it would not be right if the court did not endeavour to state its conclusions upon the arguments, which may arise in the future, where direct reliance will be placed upon the Convention. The Court of Appeal ruled on the restrospectivity of human rights in R v SSHD ex parte Mahmood (CA Transcript 8 December 2000, The Times, January 9th 2001) (BAILII: [2000] EWCA Civ 315 ). I should therefore state my approach to the questions raised in connection with the adjudication process:

(1) I must find the salient facts in connection with the process in connection with each claimant;

(2) I should consider the issues at common law on the basis that the Convention has no direct application, but nevertheless inform my considerations by reference to the Strasbourg jurisprudence;

(3) I should consider the position as though the rights guaranteed by the Convention applied not so as to determine the position but to state my conclusions having had the benefit of full argument.

The salient facts in connection with the Adjudication Proceedings.

27. Factual Background in connection with the case of the claimant Carroll

The hearing commenced on l7 December l998 and the claimant made a request for legal representation, stating that his solicitor had advised him that he should make the request. The governor refused the request, noting that there was a point of law involved, namely the lawfulness of the order, but he indicated that the issue of requiring a prisoner to squat during a search was quite clear and the question was whether the circumstances allowed an order to squat to be made. He noted that he would reconsider his decision if the evidence revealed a complicated point of law. The adjudication proceeded and the reporting officer read his statement, which said that the claimant was twice ordered to squat and refused. When the officer was asked why the order was given, the officer had simply said that he had been told by his superior officer, Principal Officer Markham, to require all prisoners being searched to squat, and this was the only reason given to the claimant when he asked on what grounds the order was made.

I turn to the contemporaneous notes of the evidence at this point, which record that Prison Officer Markham was called:

Governor - On 23 November l998 did you brief the searching staff and instruct them to require all prisoners being searched to squat?

P.O. - Yes

Governor - `For what reasons did you give that instruction?

P.O. - Firstly, we had security intelligence information that items we were looking for were on the wing, could be concealed about the person, items which would put at risk the security of the establishment. The only way to ensure that any such items were found was to require the strip search. We also took into account instances of prisoners hiding bottles of urine in their anal passages in order to cheat MDTs, which we had come across recently . [MDTs relate to drug tests.]

Governor - Did you consider then that there was a general suspicion on this occasion that applied to all the prisoners being searched, that they might be secreting items in their genital or anal areas?

P.O. - Yes.

Governor - And there was intelligence about items potentially being hidden amongst the prisoners being searched?

P.O. - Yes.

Governor - Is there anything you wish to say or ask?

Prisoner - What were these items that intelligence indicated could threaten the security of the establishment?

Governor - I do not want that question answered. The intelligence cannot be discussed at the hearing or publicly divulged - That would apply to any security information. Is there anything further?

Prisoner - A blanket order that everyone must squat is illegal.

28. The prison officer went on to state that the intelligence applied to prisoners on the wing, not to the whole establishment. They were required to squat. It did not apply to the whole prison.

The claimant was then given an opportunity to consider whether he had any other questions and there was a short adjournment. The governor asked -

`Is there anything further you wish to say or ask?'

The prisoner asked, `Did you' (addressing the question to Prison Officer Markham) `tell the officer why the squats were required?' Answer. `As part of the briefing staff were told that there was information that things might be concealed on the wing and this was why squats were required. The prisoner went on to observe that `the officer did not give any reasons why I was required to squat, so I was within my rights to object'. The governor replied, `The position is that a prisoner can be required to squat where it is suspected that something may be hidden in the anal or genital area. It is not incumbent upon staff to explain the reasons behind that suspicion to your satisfaction.' The prisoner stated, `My advice was that a blanket order given like this is illegal.' The governor replied, `I have set out what the legal position is. It does not restrict the suspicion applying to an individual prisoner due to information available to staff a suspicion may apply to a group of prisoners, as it did in this case. On that basis I am satisfied that the order was lawful. I do not consider these points of law to be so complicated that legal representation is necessary.'

Governor - Is there anything further you wish to say or ask?

Prisoner - No, really, I put my point. I believe I should have been given reasons and a full explanation.

The charge was then found proved because the governor was satisfied the order was lawful and it was accepted that it had not been complied with. The claimant was sentenced to two additional days' imprisonment and ten days cellular confinement and loss of privileges.

29. The finding and sentence was appealed to the respondent, in accordance with Rule 56 of the Prison Rules 1964 (Rule 61 of the Prison Rules l999). The grounds of appeal were set out in a letter dated 11 January 1999 and the Prison Service replied on 29 March 1999.

30. Factual Background in connection with the Adjudication of the Claimant Abdullah Muhammad Al-Hasan

The hearing took place on 2 March 1999. The claimant was refused legal representation. During Prison Officer Markham's evidence the claimant sought to cross examine him about evidence he had given during other adjudication hearings in connection with refusal of prisoners to submit to a squat search. P.O. Markham stated in answer to questions from the governor, `We have security information that prisoners might have items hidden on the Wing that threaten the security of the establishment.'

Governor - Were these items that could have been hidden in a prisoner's anal passage?

P.O. - Yes.

Governor - Did the information indicate who might have had these items, or was it that it could have been anyone on the wing?

P.O. It could have been anyone on the wing.

Governor - The information was that the items could have assisted an escape attempt?

P.O. - Yes.

Governor - Could they have been items that would have endangered life?

P.O. - There were suspicions that it could have been more than one thing.

Governor - Were you informed about this security intelligence yourself?

P.O. - Yes.

Governor - The decision to require squats - Was it yours alone?

P.O. - Yes.

Governor - Was it recorded in writing?

P.O. - No.

Then the governor asked the claimant, `Have you any questions or statements to make?' The claimant asked, `In other adjudications against Amani and Carroll this prison officer said it was due to looking for weapons, drugs or urine samples. Now it's things to help an escape. They didn't know what they were looking for.'

Governor - Were you also concerned - suspicions about weapons, drugs or urine samples?

P.O. - No. I have not given that explanation at any time. I gave the same explanation at earlier hearings.

Governor - I am not able to take evidence into account from another hearing.

The prison officer said that the same reasons were relevant in all cases and lay behind the decision to require squats.

31. The contemporaneous note of the proceedings in the case of Amani on this point, disclose:

Question: What reasons did you have for giving that instruction?

Markham: Previously we had various prisoners who had concealed items about their body, that is urine for MDT tests. Also, we had specific intelligence about the wing that there may be items hidden that could threaten the security of the establishment. For that reason I gave the instruction. There was suspicion that any prisoner could be hiding the item and the only way to be one hundred per cent sure was to do every prisoner on the wing.

Refusals to Permit Questions/Cross Examination and Bias

32. The issues as to legal representation, the stopping of questions and bias overlap, but the complaint in connection with the stopping of questions gives rise to no Convention issue, although as appears below it is relied on circumstantially as assisting the Convention arguments. So far as each of the claimants are concerned, many of the points on fairness are common to each, although as it will appear, there are certain aspects of the way in which the proceedings were conducted which require specific attention. Mr Fitzgerald took the following points. Governor Copple adjudicated in both cases. He was, as governor, partly responsible for the operation of the prison. As a result he had a very real interest in the decision he was being required to make about the disclosure of the information. It was submitted that he had, by being present, taken part in the decision making process which had resulted in the applicant being ordered to squat. Since the only issue of substance in the appeal was the legality of the order, there was a reasonable suspicion that a fair trial was not possible, because the governor was unlikely to find that he participated in an illegal decision making process. Mr Fitzgerald also relied upon the leading questions, which were advanced at both adjudications, as a clear indication that the adjudicator was possessed of information in connection with the enquiry and had sought to limit the ambit of the inquiry from the outset. He submitted that conduct, taken with his subsequent refusal in the cases, in one to permit information to be given about the particular items under suspicion of being concealed, and in the other to permit evidence given in other adjudications, the answers to which the adjudicator would have been aware, inexorably led to the conclusion that material information was being withheld from both the claimants and that unfairness had occurred.

33. It is necessary to consider certain factual issues which arose in the course of argument. In the case of Carroll, he was prevented from being informed what items the intelligence information indicated could be present, which could threaten the security of the establishment. It is suggested that had that question been answered he would have been better able to conduct his defence and better able to establish that the request made of him was unlawful, presumably, because such items as may have been listed were not capable of being hidden in the anal or genital areas. I am bound to say that I consider the point as being at the margins of relevance to the issue before the adjudicator. Positive indications from dogs as to the character of material being present are not, in the general course, likely to indicate the size or precise type of item or condition in which the material in question is being concealed. But further, the point being taken at the hearing was, and being taken by Mr Fitzgerald is, that there was no information at all which could have given rise to a reasonable suspicion that items had been concealed by the claimant Carroll and that whatever the information was, no information was given to the claimant at the time he was required to submit to a search. I therefore doubt the relevance of the question to any issue which was before the adjudicator. But that said, even if the question was apt to open up a line of defence, then in my judgment there was a clear and legitimate interest in ensuring that the sensitive security information was not disclosed to the claimant and Governor Copple was sufficiently independent and indeed well placed, because of his knowledge of the security information, to decide whether fairness required the question to be answered. Mr Fitzgerald accepted that the public interest may justify withholding material from a prisoner, but he submitted that before this could happen there would have to be an independent review of whether there was sufficient justification for this course of action and whether a fair trial was possible despite this course of action. He submitted that something akin to a PII application would be appropriate. In my judgment it would be wholly inappropriate to introduce into the disciplinary process within a prison anything akin to a PII application.

34. It was obvious from the evidence which had been given that the search was conducted upon the basis of a belief that there could be items concealed in the anal or genital areas of prisoners which, if present, gave rise to a grave security risk.. On many occasions, as here, those conducting a search will not know the precise shape or form of concealment of the items as opposed to the generic type of material which is capable of being concealed in the anal or genital areas. If, as here, the information was based upon an indication that the items could comprise explosives or weapons, and no more, any answer to the question could not advance the prisoner's case.

As to the case of the claimant Muhammad Al-Hasan, the point he sought to raise was not so much a question related to an issue, but a comment going to the reliability of Prison Officer Markham as a witness. The record suggests that it was misconceived. Having considered the passages in the case of Amani and Carroll, it is highly likely that the reference being made to drug tests and urine samples was an observation about the type of item which could, and in the past had been, concealed in the anal or genital areas and was not intended to be a statement that on the occasion in question that is what was being looked for. I reject the submission that unfairness occurred through the refusal to permit questions.

35. Bias: The test at common law

The relevant test is whether in all the circumstances "there is a real danger of bias on the part of the relevant member of the tribunal, in the sense that he might unfairly regard .... with favour or disfavour, the case of a party to the issue under consideration before him".

R v Gough 1993 AC 646 at 670 per Lord Goff;

Locabail v Barfield 2000 2 WLR 870 at 884 H to 895A per Lord Bingham CJ.

Mr Fitzgerald submitted that the test was "whether a reasonable and fair-minded bystander would have a reasonable suspicion that a fair trial was not possible". He took this test from Woolf J (as he then was) in R v Board of Visitors ex parte Lewis 1986 l WLR 130 at 135F, who in turn had adopted it from Ackner LJ (as he then was) in R v Liverpool City Justices ex parte Topping 1983 l WLR 119. In Gough, Lord Goff stated:

"Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time."

Lord Woolf stated in Gough [1993] UKHL 1, (672-673):

"When considering whether there is a real danger of injustice, the court gives effect to the maxim, but does so by examining all the material available and giving its conclusion in that material."

After Gough, if the "reasonable bystander test" was to be applied it had to be the reasonable bystander informed of the material facts available to the court.

36. After reserving this judgment and after its substantial completion, the Court of Appeal's judgment in Director General of Fair Trading v Proprietary Association of Great Britain and another ( BAILII: [2000] EWCA Civ 350, The Times, 2 February 2001 ) was delivered. Both counsel accepted the invitation of the court to put in written submissions in the light of the judgment.

37. Mr Fitzgerald submits that the case of Director General of Fair Trading (DGFT) supports his original submission based on ex parte Lewis. Secondly, that the test propounded in DGFT should apply whether or not Article 6 is held to apply to the adjudications. Unless this is taken to be the position, a different test of bias will have to be applied by a court according to the subject matter. Given that disciplinary proceedings are normally outside Article 6 and immigration cases are probably outside it, it is obvious that the potentiality for this being the position exists. There are reasons based upon the approach of the Court of Appeal, namely the reference in paragraph 36 to all forms of judicial tribunal, which point to the test being of general application, but it has to be observed that the judgment was delivered in a case where the tribunal in question was concerned to determine a civil right within the meaning of Article 6. If Mr Fitzgerald is right in his argument that the disciplinary proceedings are to be regarded as criminal and that Article 6 is thereby engaged, then it would follow that the DGFT test would apply, but so also would the requirement for "independence" be established. Since all aspects of the application of Article 6 to these proceedings were not argued, and many could arise, I propose to consider the facts by reference to both:

(1) the test laid down in Gough and Locabail BAILII: [1999] EWCA Civ 3004, ; and

(2) the test laid down in paragraph 86 of DGFT and to express a conclusion as to whether a different result would be called for.

38. Applying R v Gough

In my judgment.

(1) the governor, although having prior knowledge of the matters at issue, carried out the adjudication by reference only to what he was told at the hearing, namely that the officers had security information that prisoners might have items that threatened prison security which could endanger life and which could assist an escape, and secondly that those items could be hidden in the anal area. For the purposes of his determination he did not rely on material that had not been revealed to the claimants in the course of the hearing;

(2) insofar as he relied upon any information which was not revealed to the claimants, he did so in order to protect the confidentiality of the security information, and in doing so the nature of the defence conducted by the claimants was not affected;

(3) his refusals to permit the claimants to obtain answers to "questions" raised by them, gives rise to no inference of partiality, nor, as I have already held, did it give rise to unfairness;

(4) that the general contention that the governor, being part of the prison administration and privy to the decision, could not conduct the adjudication was not "something outside the normal situation, which could justify intervention in response to a bias accusation". See R v Her Majesty's Prison Service ex parte Hibbert, (unreported l6 January 1997, Divisional Court). It is an inherent feature of disciplinary proceedings that the tribunal is not distinct from the institution and structural dependence does not necessarily give rise to partiality. Governor Copple had not "taken part" in the decision making process giving rise to the orders in question. The highest that could be said was that when the main Governor took the decision that lock down searches of the wings be carried out, he was present. In my judgment his presence is not sufficient to give rise to a real danger of bias or impartiality. It is inherent in the system of prison discipline that it is administered by those with responsibility for managing the prison.

39. Mr Fitzgerald relied upon Rule 49(2) of the Prison Rules which provides:

"At an inquiry into a charge against a prisoner he should be given a full opportunity of hearing what is alleged against him and of presenting his own case."

The areas being relied upon, namely the two lines of questions which were prevented and the knowledge to which the adjudicator was privy by reason of his part as governor in the administration of the prison, cannot avail the claimants unless it can be demonstrated that he relied on the material at the hearing. As I have stated, in my judgment, he did not. The lines of enquiry gave rise to no matter of substance and no matter upon which either claimant would have been able to comment: see for example R v The Joint Committee on Surgical Training ex parte Milner 1994 7 Admin LR 754; R v Chief Constable of Thames Valley Police ex parte Cotton l990 IRLR 443 CA.

40. The Convention

I should now deal with the approach Mr Fitzgerald suggested was required under the Convention in connection with impartiality. The circumstances for consideration include the evidence as to how Governor Copple handled the proceedings. I see no reason, in the circumstances here, to conclude that a fair-minded and informed observer would conclude there was a real danger of bias. Mr Copple had to decide a point of law. He had not been party to the decision to order a search but it can be taken that he considered the order lawful. The conclusion that he had closed his mind to argument to the contrary is not made out. A decision that it was unlawful involved no misconduct on the part of anyone, but that the law had been misunderstood.

Refusal of Legal Representation

At Common Law

41. The Governor plainly applied the factors set out in R v SSHD ex parte Tarrant 1985 l QB 251 at 285-286 (endorsed in R v The Board of Visitors of HMP The Maze ex parte Hone and McCartan 1988 l AC 379. It is apparent from the record that he expressly took these matters into account. The claimants had time to take legal advice. They were equipped to raise a point of law. If the governor, as adjudicator, got the point of law wrong it was a remediable detriment, because he could be put right. So far as the seriousness of the charge is concerned it will be necessary to deal specifically with the Convention points, and in particular Article 6, but it can be noted that the governor, in my judgment reasonably, observed that the charge was not serious and would not attract a severe penalty if proved. The record shows that both claimants were capable, and did in fact present and conduct their case adequately. There were no procedural difficulties. There already had been delay in the proceedings in order to permit the claimants to seek legal advice and there was therefore a need for despatch because the cases had already been delayed.

Article 6

42. Mr Fitzgerald advanced argument under the head of the refusal of legal representation by reference to Article 6(3)(c) of the Convention. It provides:

"(3) Everyone charged with a criminal offence has the following minimum rights, ...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require ..."

He submitted that a person charged with a criminal offence who does not wish to defend himself in person, must be able to have recourse to legal assistance of his own choosing (per ECHR in Pakelli v Germany 1983 A 64 at paragraph 61. Although Mr Fitzgerald accepted that the governor purported to apply the criteria in Tarrant, he submitted that in truth he had failed to appreciate the significance of the points. For example, he failed to recognise that this was a case in which the true value of legal representation would have been of assistance in the determination of the complex points of law which were raised. In addition he submitted that legal representation would have served to reduce the perception that the claimants might acquire that they had not had a fair hearing. In my judgment reliance upon Article 6(3)(c) gives rise to factors similar to those which were considered in Tarrant. The claimants had legal assistance in this case. The nature of the arguments which they advanced, as opposed to those advanced by Mr Fitzgerald in this court, were not complex. The factors which were relevant in accordance with the Convention were (i) the complexity of the case, (ii) the contribution the prisoner can make if he represents himself, and (iii) the seriousness of the offence and the potential penalty involved. (See Clayton and Tomlinson: The Law of Human Rights, lst edition at paragraph 11.250) In my judgment the claimants had in reality no greater right to legal representation under Article 6(3)(c), if it had applied, than they had at common law.

ECHRR

43. Article 6(1) of the ECHR provides that:

"(1) In the determination of .... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgments shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private lives of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice ....."

Mr Fitzgerald submitted that whether proceedings are criminal within the meaning of the Convention requires consideration of three factors:

(1) whether the proceedings are criminal in domestic law;

(2) the nature of the proceedings;

(3) the severity of the penalty. (See Benham v United Kingdom 1996 22 EHRR 293 at paragraph 56).

He accepted that disciplinary proceedings are not classified as criminal in domestic law, but submitted this was of relative weight and only serves as a starting point. The nature of the proceedings carries more weight. (see Benham). Further he submitted that it was contrary to the purposes and application of the Convention for Member States to be able to classify criminal proceedings as disciplinary and to avoid the obligations of Article 6. The fact that disciplinary proceedings were brought by a public body exercising statutory powers was a significant factor, suggesting that the proceedings were criminal. Additionally, the proceedings were punitive, which suggested that they were criminal. He accepted that insofar as they were punitive they were not part of a law of general application to all citizens but submitted this factor was not decisive (see Benham and Campbell and Fell v United Kingdom 1984 7 EHRR 165 at paragraph 67-73). As to the penalty, he submitted that the Prison Rules clearly describe these penalties as "punishments". For a prisoner serving a sentence other than a life sentence (the position of Carroll) the requirement to serve additional days in prison was a serious punishment, involving a significant deprivation of liberty. For a prisoner serving a sentence of life, the claimant Muhammad Al-Hasan, the penalties include cellular confinement for l4 days and a forfeiture of privileges for a period not exceeding 42 days. He submitted that even though a life prisoner could not be sentenced to additional days, he could have been sentenced to significant punishments. As a consequence, the proceedings should be regarded as criminal.

THE CASES

44. In Campbell and Fell, both Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal charges. The ECHR held, following the principles set forth in the case of Engel and others v Netherlands (No.1) 1 EHRR 647, that Article 6 applied to the Board of Visitors' adjudication. The court stated:

"71. In any event, the indications so afforded by the national law have only a relative value; the very nature of the offence is a fact of greater import.

In this respect, it has to be borne in mind that misconduct by a prisoner may take different forms; certain acts are clearly no more than a question of internal discipline, whereas others cannot be seen in the same light. Firstly, some matters may be more serious than others; in fact, the Rules grade offences, classifying those committed by Mr Campbell as especially grave. Secondly the illegality of some acts may not turn on the fact that they were committed in prison: certain conduct which constitutes an offence under the Rules may also amount to an offence under the criminal law. Thus, doing gross personal violence to a prison officer may correspond to the crime of assault occasioning actual bodily harm and, although mutiny and incitement to mutiny are not as such offences under the general criminal law, the underlying facts may found a criminal charge of conspiracy. It also has to be remembered that, theoretically at least, there is nothing to prevent conduct of this kind being the subject of both criminal and disciplinary proceedings."

At an earlier paragraph, paragraph 69, the court observed:

"The court was careful in the Engel and others judgment to state that, as regards the dividing line between the "criminal" and the "disciplinary", it was confining its attention to the sphere with which the case was concerned, namely military service. It is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example, security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor made sanctions which may not be at the disposal of the ordinary courts and the desire of prison authorities to retain ultimate responsibility for discipline within their establishments."

45. In the claimants' case the nature of the offence was a failure to obey a lawful order under Rule 47(20) of the Prison Rules. The refusal to submit to the requirement of a squat search is not something which could give rise to any proceedings other than those in the context of a prison environment. The offence itself was one which is plainly directed to the good order, management and discipline of the prison, namely the need for prisoners to obey a lawful order. Failing to obey a lawful order by a prison officer has no equivalent in relation to non-prisoners and thus in examining whether it is in the nature of an offence, it is material (though not decisive) to note that the charge has no application to the general public (see Ozturk v Germany 1984 6 EHRR 406. It is to be noted that in McFeeley v United Kingdom (1980) 3 EHRR 161, the Commission found that an offence of refusal by a prisoner to work, which would, in the context of the present case, also be treated as an offence under Rule 47, was disciplinary and not criminal in nature.

46. It follows that if the argument can be made out for these proceedings being categorised as criminal and therefore giving rise to the engagement of Article 6, it must depend upon a consideration of the third criterion. At the commencement of the hearing Mr Fitzgerald made additional submissions on the applicability of Article 6 and 5(4) of the Convention directed to the character of the penalty imposed upon the claimant, Mr Carroll. He submitted that a disciplinary adjudication resulting in an order for extra days attracted the safeguards of Article 5(4). It provides:

"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."

He submitted that consideration had to be paid to the alteration in the law relating to remission, brought about by the Criminal Justice Act l991. Decisions such as R v SSHD ex parte St Germain 1979 1 AllER 701, Campbell and Fell, and McFeeley, were all decided under a regime where the maximum award was a loss of the "privilege" of remission, rather than an order for additional days under Rule 51. He referred to O'Reilly v Mackman 1983 2 AC 237 at 275D, where it was emphasized that the forfeiture of remission was, as a matter of law, not a loss of liberty but a loss of a privilege. He submitted that the change in the regime has led to the courts, as a part of the sentencing process, being required to take account of mandatory release. As a result, the executive no longer had the "power" to deprive a prisoner of his liberty by ordering additional days, because the prisoner had a right to be released and whereas a privilege could be taken away by the executive, liberty could not. In my judgment whilst he is correct to observe that so far as sentencing is concerned the courts are required to take account of mandatory release and to thereby avoid any consequent inequality which may occur in terms of sentences imposed prior to the commencement of the change, the point of principle which he attempted to extract from the change, in my judgment, was simply wrong. The ambit of the point sufficiently appears from a very short passage in the judgment of Judge LJ in R v The Governor of Brockhill Prison ex parte Evans No.2 1999 QB 1043 at 1070. The Lord Justice stated:

"The discretionary aspects of earlier arrangements for remission and parole were altered by the Criminal Justice Act 1991. As a short term prisoner within Section 33(5) of the Act of 1991, subject to the award of any additional days in custody for disciplinary offences, the appellant was entitled to be released on licence as soon as she had served one half of the sentence imposed by the court."

The argument is wrong because the right to be released on licence is not unconditional and the constitutionality of the power to order additional days is founded upon the sentence of the court. Thus the constitutional principle relied upon by Mr Fitzgerald and applied by Lord Diplock in the case of Moses and Hinds and others 1977 AC 195 (the "Gun court case") can have no application. Upon a true analysis, it is the sentence imposed by the court which is to be regarded as the basis for confinement. In my judgment the fact that there are mandatory requirements for release, which affect the Secretary of State, does not affect the legal basis of a prisoner's confinement, namely the length of sentence imposed by the court. I can see nothing unconstitutional in some part of the total prison sentence imposed by the court being available for the purposes of providing effective disciplinary sanctions during the time the prisoner serves his sentence. It is obvious that because of his confinement there are a limited range of sanctions which can be applied. It is equally obvious that the conferment of a right to release subject to good behaviour provides an effective sanction. As a matter of fact and of consequence to the individual, the penalty will give rise to a longer period in detention than he might have enjoyed under the licence provision, but his period in detention will never exceed that which has been authorised by the court. So far as Article 5(4) is concerned the requirement of access to a court has been met in connection with the original sentence. In Campbell and Fell the court stated:

"The court, for its part, does not find the distinction between privilege and right is of great assistance to it for present purposes."

Waller LJ stated in R v SSHD ex parte Germain (1979) 1 AllER at page 742B:

"Whether remission is a right or a privilege is in my opinion immaterial."

I agree.

47. As the argument developed under the third criterion, it seemed that it was being suggested that it was to the length of time of any loss of liberty, or the precise nature of the confinement, to which regard had to be paid, and to little more. In Campbell and Fell the court was concerned with the total of 570 days loss of remission and cellular confinement for a maximum of 56 days. In Pelle v France 1986 50 D & R 263, the Commission ruled that l8 days loss of remission could not be regarded as a sanction of such nature and severity as to be capable of bringing the disciplinary offence with which the applicant had been charged into the criminal sphere. In McFeeley v United Kingdom, the applicant McFeeley was awarded four months and three months loss of remission to run concurrently. The Commission concluded in the context of the serious disciplinary problems which existed at the Maze Prison, arising out of the protests, that these penalties, imposed for essentially disciplinary offences, "did not point to the determination of a `criminal charge' for which the safeguards contained in Article 6 ought to have been observed".

48. In my judgment, a mechanistic approach should be avoided. A categorisation in domestic law has weight, "relative" to the objective validity of the categorisation when considered with the other criteria. For that reason it cannot be decisive. If it was, there would be no need for additional criteria. An examination of the nature of the proceedings can be helpful for its objective impact. Again it is not decisive. The period of time imposed by way of penalty, since it can involve a loss of liberty, and restraint, is a significant pointer. The power to deprive another of liberty, whether exercised by a criminal court or otherwise, for however long a period, must be scrutinised closely. In my judgment, where two criteria point to the proceedings being disciplinary, it is nevertheless necessary that the penalty imposed be proportionate to its character as a penalty for a disciplinary offence. If the relationship between the disciplinary character of the proceedings and the penalty imposed is disproportionate then it is likely to lead to a conclusion that being excessive, it went beyond serving the purpose for which the power existed, and for that reason there was an entitlement to greater protection. For similar reasons, where the maximum penalty which could be imposed can be seen to be beyond that which, objectively assessed, the maintenance of discipline could require an entitlement to greater protection, is likely to exist. I am satisfied that the two additional days and l0 days cellular confinement, with a stoppage of earnings and loss of privileges, so far as claimant Carroll was concerned, carry no character of excess, having regard to the disciplinary offence. The claimant, Al-Hasan, was given no additional days but simply l5 days stoppage of earnings and forfeiture of privileges, which in my judgment was wholly appropriate as a disciplinary penalty. Nor, having regard to the range of offences with which the prison authorities can be concerned, can the maximum penalties lead to a different conclusion.

I am confirmed in my conclusion that this is the correct approach, when considering the consequence of holding that regardless of length, actual or potential, additional days constituted the disciplinary proceedings "criminal". It would undermine the administration of the prison to act speedily to enforce its disciplinary procedures. If in every case where there was a possibility that additional days might be awarded, a disciplinary offence had to be treated as a criminal charge the consequence of delay is obvious. Basic matters of prison discipline then could not be dealt with expeditiously, but would require the implementation of the more elaborate procedures under Article 6, and the diversion of resources away from ordinary management.

49. Reasons Given by Directorate of High Security Prisons

In my judgment no parallel exists between the need for reasons from the Parole Board or the Secretary of State in connection with a change of category. There has been a hearing and a conclusion at the hearing. The response on appeal is to a large extent directed by the grounds raised. In my judgment the reasons given were adequate, having regard to the matters raised.

50. Conclusion

For the reasons I have stated, each challenge on this application for judicial review fails and the claimants' applications are dismissed.

MR JUSTICE NEWMAN: For the reasons given in the judgment now handed down, each of the challenges on this application for judicial review is dismissed. Can I thank counsel for their particular points which they made on the draft. I have taken account of them.

May I mention additionally that I made some minor alterations to paragraph 20 in order to clarify matters. I draw them to your attention for your convenience. After the quotation in paragraph 18.15 (xiii) of the manual for the text which had read "particular grounds" you will find in the new text "reasonable grounds", then an alteration in the tenses thereafter and the addition, after the words "grounds for suspicion", of a reference to paragraph 2 above in the judgment; then my alteration, as I say, to the grounds. Thank you very much.

MR GRODZINSKI: My Lord, I am grateful. I have no applications.

MR SOUTHEY: My Lord, I have two applications, one for legal aid. Secondly, I do seek leave to appeal in relation to the matter. Firstly, in my submission this is a case where, whatever your Lordship's assessment of the merits of the application, there are compelling reasons why permission should be granted.

My Lord, this case has, as your Lordship is well aware, raised two matters of significance to both the prison service and its management and to a large number of prisons. Your Lordship clearly heard lengthy argument in relation to them. The principles that your Lordship has applied are likely to govern the conduct of adjudications and indeed the conduct of the management of prisons in a large number of cases; indeed, I understand that there was a judicial review this week raising similar issues in relation to fair trial.

MR JUSTICE NEWMAN: I gave permission for the judgment, which was obviously then not handed down, to be referred to in argument. It is obviously a matter which has got to be looked at. You say it ought to be looked at by a superior court.

MR SOUTHEY: Absolutely, my Lord. Secondly in relation to the permission application, your Lordship may be aware that the European Court of Human Rights held a hearing in relation to the application of Article 6, in particular the entitlement to legal representation, on 30th January this year. I understand - and my instructing solicitors have spoken to the solicitors in that application - that an indication was given by the court that both applications were admissible, although no formal written decision has yet come from the court. One of those applications related to somebody who only received seven days as a result of a disciplinary hearing. So it is in the same sort of area as the applicants in this case. And so, again, in my submission, the fact that the European Court of Human Rights has declared it permissible certainly indicates arguability.

MR JUSTICE NEWMAN: What is it you are most anxious to agitate? Maybe you have not chosen between the two. We have got obviously here the Convention points, but there is also the common law arguments which Mr Fitzgerald and you advanced. What is it you are most anxious about?

MR SOUTHEY: There are three things I provisionally identified. I would say that I am reluctant to pin my colours too much to the mast at this stage partly because inevitably no instructions have been taken from the lay clients and I would not like to be seen at this stage to be waiving the rights of the lay clients to raise issues of concern, subject obviously to their having merit and to a proper discussion. That is a concern because clearly they are in custody and are not aware at the moment of the contents of the judgment.

The three issues that I highlighted as of particular concern are, firstly, the approach to the Convention. Your Lordship's conclusion that, because the additional days are governed by the sentence, Article 6 does not apply, because effectively the legality of those additional days derives from the sentence. In my submission, that is arguably inconsistent with the approach in ex parte Evans No. 2. So that is a matter which relates to the Convention and the applicability of the Convention.

The second point that we raise is this. Your Lordship, as far as I am aware, is the first court to consider the implications of the Director General of Fair Trading case and certainly the first case to consider it in the prison context. Your Lordship's judgment clearly focuses on the issue of whether the degree of criticism that had been involved in finding these orders was not lawful. In our submission there is an arguably different approach, which is, rather than focus on the degree of criticism, to focus on the degree of involvement in the previous decision. We would say that, because there had been association with that previous decision in a context where one would expect a governor to speak up if he believed the decision was unlawful, that is sufficient to give rise to the suggestion of objective bias. We would submit though generally that, because the Director General of Fair Trading represents perhaps a small but significant shift in the approach to bias, and it is a shift that has not really been considered, that is a matter that is certainly open to argument.

The third point that we would make, my Lord, is in relation to the squat searches. Your Lordship's judgment, certainly in relation to the issue of reasons, relies on an expectation that a prisoner would expect to be search where there are reasonable grounds of suspicion that material is secreted. But your Lordship's judgment also recognises that the security manual is not a matter that is generally available and yet that is the only document that actually specifies that requirement of reasonable suspicion. We would submit that it is arguable that that approach is flawed, because there is no basis for a prisoner knowing about that; that prisoner may be able to guess that, but that is all they are doing.

For those three reasons we would submit that there are merits in terms of appeal. But, as I say, I would not wish ----

MR JUSTICE NEWMAN: No, no, I just wanted to get some feel of how you put it in order to assist also any opposition there may be, if there is opposition, to your application.

MR SOUTHEY: More fundamentally, my Lord, we would go back also in any event and say this does meet the compelling reason test, even if your Lordship is not with us in terms of the merits.

MR JUSTICE NEWMAN: You say it is a point of public importance. Thank you, Mr Southey. Mr Grodzinski, do you resist?

MR GRODZINSKI: I do. My Lord, dealing with the various matters raised by my learned friend, first of all the decision in Easy v. Connors in the European Court of Human Rights, I have no instructions as to the position. I am in no position to doubt and do not doubt what my learned friend says as to the court having declared the application admissible. They have done no more than that. We do not know why they have done it. It is difficult to place any reliance upon an argument that they have declared two applications admissible and we have limited details as to the facts.

My learned friend says one involves seven days. We do not know what other deprivations he was subjected to by the sentences. It is right to say, and your Lordship's judgment has acknowledged, as have the Strasbourg authorities, that the question as to whether Article 6 is engaged in an adjudication turns to a significant degree on the facts and in particular on the severity of the sentence imposed. So there is not a wide-ranging point of general application raised that would have to be determined by a court.

As to the argument raised by my learned friend, that the legality of the sentence is determined by the original sentencing judge and the application, I suspect, of Article 5 to that, that has been dealt with many times by the European Court as by this court, and there is no need for the Court of Appeal to deal with it afresh.

As to my learned friend's argument on bias, I say that the Director General of Fair Trading case raises no significantly new approach that would have any impact on the facts of this case. It cannot be said that it raises the threshold to such a degree, or lowers the hurdle to be crossed when coming to alleged bias to such a degree, that it will in fact in this case make any difference at all.

Finally, as to the reasonable suspicion point, namely, whether the prisoner ought to have been told he would only be searched when there was a reasonable suspicion that he had something about him, my learned friend candidly admitted that it was something he could guess. It is more than something that he could guess. It is a matter, in my submission, of blinding common sense if you are going to be searched, and if there is a suspicion you have got something, either yourself or as a group of prisoners.

So, my Lord, for all those reasons we oppose permission. If permission is to be granted at all it should be after my learned friends have pinned, as they say, their colours to the mast.

MR JUSTICE NEWMAN: What do you say about the general importance of the point?

MR GRODZINSKI: Which one, my Lord?

MR JUSTICE NEWMAN: The issue in the sense ----

MR GRODZINSKI: The Article 6 issue?

MR JUSTICE NEWMAN: Yes, I suppose it comes down to that. The Article 6 issue and the effect of the Convention on these very important areas of prison life and prison adjudications.

MR GRODZINSKI: My Lord, I accept that they are important points in the context of that case. I do say, however, that your Lordship's decision turns to a significant degree on the facts. I also say that for the reasons given in your Lordship's judgment the threshold test for leave to

appeal to the Court of Appeal, namely does it have a real possibility of success, simply is not met in this case. It should be a matter, if at all, for the Court of Appeal.

MR JUSTICE NEWMAN: Thank you. Mr Southey, what would you like to say.

MR SOUTHEY: Two things; firstly, I would again point out that the threshold test has, as it were, two limbs to the grant of permission test: one is merits and the second is compelling reason. Secondly, my learned friend makes the point that the application of Article 6 depends on the particular facts of this case. That is clearly correct, but the Court of Appeal is only ever going to be faced with a particular case and with particular facts, but what it would be required to do is take those facts and develop principles. It would be of value to the large number of adjudications which take place in this country for the court to be able to set down those principles by looking at the facts of a particular case, or two particular cases. The court is never going to be in a position where it can do more than look at the facts of a particular case and use those facts to develop the principles.

My Lord, I cannot remember off-hand the figures from my learned friend's argument, but there are a very large number of adjudications taking place and there are undoubtedly adjudications taking place every day, and there is an urgent need, in my submission, for guidance for all parties involved in those adjudications as to what the application of Article 6 means.

MR JUSTICE NEWMAN: Thank you. I regard this application for permission to appeal as very finely balanced but, having heard most helpful submissions on both sides, I am just persuaded that this is a matter which should be considered by the Court of Appeal. For that reason I grant permission to appeal.

There be legal aid assessment.