The Queen (on the Application of James Dowsett) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Silber |
| Judgment Date | 27 March 2013 |
| Neutral Citation | [2013] EWHC 687 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/13168/2010 |
| Date | 27 March 2013 |
[2013] EWHC 687 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Silber
Case No: CO/13168/2010
Heather Williams QC and Adam Straw (instructed by Leigh Day & Co) for the Claimant
Jonathan Swift QC and Holly Stout (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 12 and 13 February 2013
Introduction
James Dowsett ("the Claimant"), who has been a serving prisoner since 1989, challenges the policy of the Secretary of State for Justice ("the Secretary of State") on so-called "rub-down" searches and, in particular, the policy that a male prisoner cannot normally object to such searches conducted by a female prison officer other than when his case falls within the exceptions based on "religious" or "cultural" grounds. In consequence, the Claimant has been searched by female officers on many occasions. He finds the searches carried out by female officers uncomfortable and embarrassing. The rub-down search in question is, as I will explain in paragraph 12, very similar to the searches routinely carried out on passengers at airports.
The Claimant, in the words of paragraph 42 of his skeleton argument, "nowhere argues that male prisoners should only ever be searched by male staff". His complaint is that the present exceptions based on "religious" or "cultural" grounds are too limited. His complaint is mainly directed to what are said to be the limited nature of the "cultural" grounds exception, which, as I will explain in more detail in paragraph 36 below, is:-
"An objection [to being searched by a female member of staff] that arises from a sincerely and deeply held belief".
Instead, the case for the Claimant is that by not extending the right of male prisoners to object to rub-down searches being administered on them by female officers to cases where (in the words of the relief sought by the Claimant in paragraph 100(d) of his skeleton argument) male prisoners have "a genuine and sincere objection to cross-gender searching", the Secretary of State has been acting wrongfully. In particular, he contends that this conduct constitutes not merely unlawful discrimination on grounds of religion and sex, but also an interference with his rights under Articles 8 and 14 of the European Convention on Human Rights ("ECHR") and an error of public law.
The Claimant was convicted of murder on 23 March 1989 and he received a life sentence with a tariff which expired on 1 February 2009. He is currently a Category D prisoner located at HMP Kirkham, but he has previously been incarcerated in many other prisons.
Permission to make this application was granted by Thirlwall J on 26 October 2011. The focus of this application has been on whether the Claimant should be entitled to object to these cross-gender rub-down searches on the basis that he has a genuine and sincere objection to them, but which is not based on the defined genuine religious or cultural grounds. There is evidence that two other male prisoners have recently raised similar objections.
Proceedings were started on 23 December 2010 and there have been disputes as to which parts of the claim are time-barred. It is now common ground between Ms Heather Williams QC, counsel for the Claimant, and Mr. Jonathan Swift QC, counsel for the Secretary of State, that for the purposes of this claim, this Court will consider only the human rights claims of the Claimant arising in the period of 12 months prior to the commencement of the proceedings, which precludes examining matters prior to 24 December 2009. So far as the other claims are concerned, and so it is common ground for the purposes of this claim, this Court will examine only those claims which relate to matters arising after 24 September 2010. The Claimant's complaints are all continuing.
The Rules on Rub-down Searches of Prisoners
The basic power of the prison authorities to search prisoners is derived from section 47(1) of the Prison Act 1952, which provides that:—
"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."
The Prison Rules 1999 (SI 728/1999) and the previous versions of the Rules were accordingly enacted pursuant to Section 47(1). Rule 41 of those Rules provides that:-
"41(1) Every prisoner shall be searched when taken into custody by an officer, on his reception into a prison and subsequently as the governor thinks necessary or as the Secretary of State may direct.
(2) A prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed.
(3) No prisoner shall be stripped and searched in the sight of another prisoner, or in the sight of a person of the opposite sex."
Detailed provisions with regard to the searching policy are set out in Prison Service Instructions ("PSIs"). When these proceedings were commenced, the description of the nature of and occasion for the various types of prison search was contained in Prison Service Instruction 48/2010 ('PSI 48/2010'), which is a re-statement of previously adopted provisions in force since 29 October 1992 with the implementation of the changes set out in Circular Instruction (CI) No. 49/92 ("the 1992 Circular"). Since 1 November 2011, these provisions have been contained in PSI 67/2011. However, the relevant provisions are identical and so for the sake of convenience, I will only refer to PSI 67/2011.
The provisions of PSI 67/2011, which are said by Ms Williams to be discriminatory, state (with emphasis added) that: -
"32. Female prisoners, visitors and staff must only be searched by female staff.
33. Male visitors, prisoners and staff may be rubbed down searched by male or female staff…
34. It is usual for female members of staff to rub-down search males unless the man has a genuine religious or cultural objection to this. Where a female member of staff objects to rub-down searching a male, managers must make reasonable adjustments to ensure that they do not have to carry out the search."
Annex D "1… Searches of male prisoners with a genuine religious or cultural objection to being searched by a female member of staff must be carried out by a male member of staff."
There are a number of different types of searches but this application is concerned with the "rub-down" searches either at level A or at level B. Since 1992, these searches have been conducted on male prisoners by either male or female prison officers.
The details of the rub-down search were helpfully and clearly described by Thirlwall J when giving permission in this way:-
"2. In the ordinary course of events the Claimant is, like all prisoners, subject to being searched. There are a number of different types of searches. I am concerned with what is known as the "rub-down" search, either at level A or level B. Since 1992, these searches have been conducted on male prisoners by either male or female prison officers. The current policy has been in force since October 2010.
3. The detail of the search is set out as follows:
•Search the head by running fingers through hair and round the back of the ears;
•Look around and inside the ears, nose and mouth. You may ask him to raise his tongue so that you can look under it;
•Lift the collar to feel behind and around it and across the top of the shoulders;
•Search each arm by running your hands along the upper and lower sides;
•Check the front of the body from neck to waist, the sides from armpit to waist and the front of the waistband;
•Check his back from collar to waist, back of the waistband and seat of the trouser;
•Check the back and sides of each leg from the crotch to the ankle;
•Check the front of his abdomen and front and side of each leg;
•Ask him to remove footwear … check the soles of the feet.
4. The level B rub-down search is similar to the level A rub-down search, but does not includes the first, second or last step".
Rub-down searches are considered by the Claimant to be a thorough and intimate rub-down of the prisoner's body. It is said that in checking the male prisoner's waistband, the searcher will often come into contact with the flesh of the prisoner, but it is common ground that the rub-down searches do not involve any touching of the inmate's genitals or any inspection of his anal cavity.
In a witness statement, Mrs Lesley Cuthbertson, who is a Senior Manager D in the Security Policy Unit of the National Offender Management Service, has explained that it would be expected that a level A search would take approximately 60 seconds on average, while a level B search would take approximately 30 seconds.
Mrs Cuthbertson also explains first that to the best of her knowledge, the present application by the Claimant is the first challenge by a prisoner to a cross-gender rub-down search, and second that this complaint has not been mentioned or raised in reports by either Her Majesty's Inspectorate of Prisons or by the Independent Monitoring Board which is a body established by the Prison Act 1952 to monitor the treatment of prisoners to ensure that proper standards of care and decency are maintained.
The History of Rub-Down Searches on Male Prisoners
Prior to the 1992 Circular, prison rules only allowed for prisoners to be searched by officers of the same sex, but by that Circular, this rule was revoked. Its effect was to remove the policy...
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