R (Greenfield) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 2001 |
| Date | 16 February 2001 |
| Court | Queen's Bench Division (Administrative Court) |
Court and Reference:Administrative Court ; CO/1249/2000 and CO/3466/99
Newman J
Appearances:E Fitzgerald QC and K Gledhill (instructed by Thanki Novy Taube) for C, E Fitzgerald QC and H Southey (instructed by Deighton Guedalla) for A; P Sales and S Grodzinski (instructed by the Treasury Solicitor) for the Defendant
The lawfulness of orders to submit to squat searches; whether prisoners had to be given reasons for an order to squat; whether the searching officers had to know the factual basis for the order. The fairness of adjudication proceedings, including whether Art 6 European Convention was applicable and whether Art 5 European Convention was breached by the award of additional days' imprisonment.
Rule 39 Prison Rules 1964 (now r41 Prison Rules 1999), made pursuant to s. 47 Prison Act 1952, allows searches "as the governor thinks necessary" and requires that they be conducted "in as seemly a manner as is consistent with discovering anything concealed." Following indications given by a dog during a search that there might have been arms or explosives present in a classroom used by 2 wings in a prison, a decision was taken that all prisoners housed on the 2 wings would be asked to squat during a strip search; this was in November 1998. Nothing was recorded in writing as to the reasons for the search. The officers carrying out the strip and squat searches were not given details, but were informed that they were looking for items which might threaten the security of the prison and might be concealed in the anal or genital area of prisoners. C and A were asked to squat during a strip search; C asked for reasons and refused to obey when he was not given reasons, A indicated that there had to be a reasonable suspicion that he was concealing items and so refused to squat because that had not been established. The officers conducting the searches could not provide detailed reasons because they did not have the relevant information, and could not state whether there was a specific suspicion relating to individual prisoners as opposed to a general suspicion relating to all those on the 2 wings. Both prisoners were charged with disobeying a lawful order, contrary to the Prison Rules.
Separate adjudications were conducted by the same Deputy Governor, who had prior knowledge of the giving of the order and the reasons for it. The issue at the adjudications was the legality of the order to squat. In both cases, a request by the prisoners for legal representation was refused. The searching officers gave evidence of the refusal to squat, and that the order to squat was made because a principal officer said that all prisoners should be squat-searched. The principal officer gave evidence that security intelligence information suggested that there were items potentially hidden amongst the prisoners on the wings which would put the security of the prison and risk and which could be concealed, thereby necessitating a squat search.
In C's adjudication, when C asked what items were being looked for, the adjudicator prevented the question being answered. C submitted that a blanket order to squat was unlawful and that accordingly he was within his rights to refuse, and also because he had not been given reasons for the order. The adjudicator found the order lawful, convicted C and sentenced him to 2 days' additional imprisonment and 10 days' cellular confinement and loss of privileges; the maximum sentence available was 42 additional days' imprisonment. His internal appeal to Prison Service headquarters was refused.
In A's case, when he sought to ask about previous adjudications, to seek to establish that different evidence had been given as to what was being sought, the adjudicator prevented the question, stating that he was not able to take into account evidence from other hearings. A was convicted and sentenced to stoppage of earnings and loss of privileges: as a life sentence prisoner, he could not be subjected to additional days' imprisonment. His internal appeal failed.
Judicial review proceedings were commenced by both prisoners challenging the lawfulness of the orders to squat and the fairness of the adjudication proceedings.
In relation to the legality of the orders, for the prisoners it was submitted that the degree of intrusion caused by a squat search meant that it could only be lawful if there was an objective and compelling need for the search (which was not made out on the facts), and a reasonable suspicion in the minds of the officer giving the order to squat that something might be secreted in the particular prisoner's anal or genital area; and that an explanation of the need to squat was given to the prisoner, so that prisoners are given the opportunity to volunteer information if they chose and so that they have less cause to conclude that the order was an abuse of power. The Home Secretary accepted that a compelling need had to be shown, and that the officer had to have a reasonable suspicion as to concealment in the anal or genital area: but submitted that this could be satisfied by a suspicion attaching to a group of prisoners. In relation to reasons being given, the Home Secretary submitted that the law imposed no such obligation and that it would be contrary to the smooth running of the prison.
As to the fairness of the adjudications, it was submitted for the prisoners that the governor had wrongly stopped questions, was biased and wrongly refused to allow legal representation; and that the decisions on appeal were unfair because they gave inadequate reasons. The Home Secretary made contrary arguments.
It was also submitted for the prisoners that the adjudications amounted to the determination of a criminal charge and so were covered by Art 6 European Convention, on the basis that they were punitive in nature and brought by a public body. It was submitted that Art 6 was breached by reason in particular of the failure to provide an independent and impartial tribunal and the denial of legal representation. In C's case, it was also argued that Art 5 was breached because additional detention had been ordered by a body other than a court. The basis for arguing that the European Convention was directly applicable was that, whilst the relevant adjudications had occurred before 2 October 2000, when the Human Rights Act 1998 came into force, the judicial review proceedings were an appeal in relation to proceedings brought by a public authority and so the European Convention was directly applicable, by virtue of s. 7(1) and s. 22(4) Human Rights Act 1998, which should be interpreted broadly given the statutory purpose of allowing citizens to enforce their basic rights. The Home Secretary argued that the European Convention was not applicable to the adjudications as they occurred before 2 October 2000, but that in any event neither Art 5 nor Art 6 were applicable as the proceedings were disciplinary and the additional days added in C's case were still part of the sentence of the criminal court.
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, para 19 of the Prison Rules 1964 (now Rule 51, para 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...
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