Dowsett, R (on the application of) v Secretary of State for Justice

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 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.

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 restriction on the searching of male prisoners by female officers, but only in respect of rub-down searches. One of the main reasons why the old policy was revoked was that there were a growing number of female officers employed in male prisons, who were disadvantaged as they could not undertake the full range of duties expected of an officer. The old regime also denied male colleagues the opportunity to work in posts which were in consequence blocked by female officers.

The 1992 Circular made it clear that it was not proposed to allow female prisoners to be searched by male officers because in the words of paragraph 6 of the Circular:-

“(1)

Considerations of privacy and decency are more likely to arise with men searching female inmates than with women searching male inmates. A female inmate is more likely to find the search objectionable, particularly since many female inmates have previously been abused by men.

(2)

Because almost all inmates are male, and female officers will always be employed at female establishments, not requiring male officers to search female inmates is not going to restrict their employment opportunities.

(3)

Earlier consultations revealed a consensus both a Prison Service Headquarters and in establishments against the search of female inmates by male officers.”

The 1992 Circular considered searches of male prisoners. It recognised that:-

“A small number of male inmates may have genuine religious or cultural objections to being searched by a female officer. In such cases we advise Governors to accede to their objections and to ask a male officer to conduct the search. If the Governor considers the objection not to be genuine then he or she should not give way to it… Inmates who decide they do not wish to be searched by female officers, where it is clear that there is no good reason for their refusal, may be liable to disciplinary action.”

The 1992 Circular stated that female officers posted to male establishments had to understand that they might then be required to carry out rub-down searches of male inmates. In 1994, a female officer, Ms Carole Saunders, successfully claimed discrimination on the grounds that she was required to rub-down search male prisoners, while male officers were not required to rub-down search female prisoners. This decision of the Employment Tribunal was upheld on appeal by the Employment Appeal Tribunal in Home Office v Saunders [2006] ICR 318 which is a decision relied on by Ms Williams and to which I will have to return to consider in greater detail.

As a result of this decision, the policy in 2005 was amended so that female members of staff could object to conducting the rub-down searches of men.

There have been a number of areas in which the treatment of male and female prisoners has been considered. The position of women in the Criminal Justice system was considered by Baroness Corston in her 2007 report on “A Review of Women with Particular Vulnerabilities in the Criminal Justice System” (2007), which gave many thoughtful comments of the particular position of women prisoners. It did not comment on rub-down searches or on the significance of the genders of the prisoners searched or of the person doing the searching. So issues such as the extent to which men would find cross-gender searching uncomfortable or distressing were not covered.

The report highlighted the facts that

These significant differences between the male and female prison populations led Baroness Corston to recommend the Secretary of State to adopt different policies in relation to male and female prisoners in relation to a number of aspects of prison life, including recommending that full searches of prisoners should be reduced to the absolute minimum compatible with security for female prisoners. She explained in paragraph 5 that: -

“Equality does not mean treating everyone the same. The new gender equality duty means that men and women should be treated with equivalent respect, according to need. Equality must embrace not just fairness but also inclusivity. This will result in some different services and policies for men and women.”

and that:-

“equal treatment of men and women does not result in equal outcomes”.

The Review and Operational Feedback showed that the searching of women prisoners was of limited value because they were able to conceal illicit items vaginally, and that these were unlikely to be revealed by a full search. Other considerations taken into account during the Review included the facts that there was a high proportion of women prisoners who had experienced sexual and/or physical abuse and who were suffering mental health problems.

As a result of the Review, the requirement for women prisoners to be fully searched on a routine basis was removed. So from then on they could only be fully searched on the basis of intelligence or of suspicion. In addition, unlike male prisoners, women prisoners could not be required to squat as part of any full search because intelligence had shown that women were more likely to secrete items of contraband vaginally rather than anally and that such items would not be revealed by squatting.

In 2010, the Secretary of State commenced a detailed Equalities Impact Assessment (“EIA”) of all its searching policies. Staff and visitors were all issued with questionnaires and prisoners were consulted with in focus groups, in which they were asked open questions about various aspects of the searching policy, inviting staff, visitors and prisoners to identify any issues they had encountered with the searching policy and to say whether they thought any of these issues were equality issues.

Mrs Cuthbertson has explained in paragraphs 33 and 34 of her witness statement that with the exception of one Muslim prisoner, no male prisoners, out of the 110 who participated, complained about rub-down searches being conducted by female prison officers. Instead the attention of the prisoners’ complaints was directed to the use of dogs in searching inmates and their cells, and about searches being carried out by gay and lesbian officers. Of staff and visitors who reported issues with cross-gender searching, 11 out of 14 specially cited religious grounds of objection, while the other three were not specific in their comments.

Prisoners were apparently given the opportunity through the EIA consultation to raise such issues if they wished to do so. It is noteworthy that the EIA recognised that the searching procedures adversely affect women more than men, and significantly it did not identify any adverse impact on men generally.

In late 2011, the Secretary of State’s National Offender Management Service sent a questionnaire to all 130 or so prisons which held male prisoners and 67 of them responded. Its purpose was to seek information about the application of search policy with particular focus on cross-gender rub-down searching. The questionnaire was issued because of the Claimant’s application in these proceedings, as this was the first time that the Security Policy Unit had become aware of a possible issue in relation to the different policies for cross-gender rub-down searches of male and female prisoners.

The questionnaire asked the respondents in question 9 if their establishment had received requests by male prisoners to be exempted from cross-gender rub-down searches on (a) religious or (b) cultural grounds. In answer, 15 prisons out of the 67 prisons which responded indicated that they had received requests for male prisoners to be exempted from cross-gender rub-down searches on religious or cultural grounds. Where it was indicated by the prisons in the response form that the reasons given by male prisoners for a dispensation from cross-gender rub-down searching were religious grounds, at least two prisons stated that they had refused made on those grounds and one prison which indicated that it had received a request from a prisoner who had a “hatred of women”, but it is unclear whether this objection was upheld. Ms Williams points out correctly that the questionnaire did not ask how many male prisoners objected to cross-gender rub-downs for reasons other than for religious or cultural grounds. The Claimant, however, accepts that the number of prisoners sharing his grounds of objecting is “comparatively small”.

Mr Swift contends that the survey indicates that prison governors believe that creating more exceptions to the rule that male prisoners have to be subject to cross-gender rub-down searches, such as by prohibiting the searching of male prisoners by female officers, or by extending the grounds on which prisoners were entitled to object to being searched by female officers, could have a considerable impact on the management and operations of prisoners in respect of the need to maintain security and discipline, particularly in those prisons with male inmates and a high proportion of female staff.

I accept that this might be true if the change was to prohibit female staff from searching all male prisoners as it would first cause significant difficulties in relation to the deployment of staff, and second it would also inhibit the safe and efficient movement of prisoners around the building especially at times of the day when prisoners are moving about or returning to the prison. It is also said that it would affect staff/prisoner relationships by undermining the authority of female prison officers.

Ms Williams is correct in her submission that the Claimant’s case is not that female officers could never perform rub-down searches on any male prisoners but that the present cultural exception should be extended to cover cases in which male prisoners have a genuine and sincere objection that cross-gender searching would cause discomfort or distress. There would be very few prisoners who would fall into this category, but nevertheless would fall outside the present cultural exception. In the light of the fact that there is no evidence that the present cultural and religious grounds have caused problems of the kind set out in the last paragraph, I cannot accept that the extension advocated by Ms Williams would cause very serious problems for prison administration as there would be so few prisoners who would seek to avail themselves of it while being outside the present exceptions. It would, however, cause some problems while it was being decided if the claim of a particular prisoner would fall within an extended exception, such as the one advocated by the Claimant.

I do not consider that the results of the questionnaire throw much light on the issues raised on this application although the EIA consultation had shown a lack of concern about the alleged limited extent of the exceptions in the present regime.

With the coming into force of the gender equality duty on 18 April 2006 and the Public Sector Equality Duty on 5 April 2011, a number of steps were taken to ensure that the duty was complied with.

On 19 April 2012, further guidance (“the 2012 Guidance”) was issued to all prisons in a document entitled “Rub- Down Searching of Male Prisoners by Female Staff Clarifying the Application of the Current Policy”. It stated that in the event of a prisoner claiming to invoke an exemption on religious or cultural grounds, the approach to be adopted should be (with my emphasis added) that:-

“B. Assessing exemptions from rub-down search by a female member of staff

Exemptions for male prisoners will only be permitted when the male prisoner has genuine grounds for objecting to being searched by a female member of staff. It is not sufficient that the prisoner would prefer to be searched by a male member of staff. In practice it is likely that prisoners will only be able to establish good reason for an exemption in cases where the practice has caused genuine distress.

…

6.

On Cultural Grounds: Some male prisoners may have genuine objections to being searched by a female member of staff on cultural grounds. A cultural ground means an objection that arises from a sincerely and deeply held belief.

7.

If a prisoner asserts reliance on this exemption he will need to be able to: (a) explain what the sincerely held belief is; (b) set out the reasons why he holds that belief; (c) explain why that belief means that he objects to a rub-down search being performed on him by a female member of staff. In many if not all cases it is to be expected that the prisoner will be able to demonstrated that being searched by a female member of staff will be a cause of genuine distress.

8.

A mere preference to be searched by a male officer will not be enough to constitute a sincerely and deeply held belief. Similarly reasons which are frivolous, or are intended to frustrate the efficient running of the prison, should be rejected.

9.

It may be difficult to confirm the veracity of any cultural objection based on sincerely held beliefs. Probation reports and/or consultation with the prisoner’s offender manager, personal officer or wing staff may be of use. If the prisoner has made the request in writing, it might be helpful in addition to talk to him in order to confirm hat the reason relied on is genuine and deeply held. Whether a prisoner has made good an objection on this ground is a matter to be decided case by case. There are no hard and fast rules. Any assessment should take into account all relevant factors. One example may be where the person in question was raised in circumstances where any physical contact with members of the opposite sex outside the immediate family was atypical or where the particular cultural group to which he belongs expressly forbids physical contact with members of the opposite sex.”

I now turn to set out the Claimant’s history and then to explain the relevant principles of discrimination.

The Claimant unsuccessfully appealed to the Court of Appeal against his conviction of murder at Norwich Crown Court on 22 March 1989 when he was sentenced to life imprisonment with a tariff of 21 years.

On 20 September 1994, he lodged an application at the European Commission of Human Rights in Strasbourg which was subsequently transferred to the European Court of Human Rights. The Court gave judgment in the Claimant’s favour on 24 September 2003 (Dowsett v United Kingdom (2004) 38 EHRR 41) determining that withholding certain documents by the prosecution had infringed his rights to a fair trial under Article 6 of the Convention. On 16 September 1999, the Claimant applied to the Criminal Cases Review Commission to have his case referred back to the Court of Appeal, but it refused to do so because, despite the finding of a breach of Article 6 by the European Court, the information that had not been disclosed to the Claimant did not, when taken together with the evidence given at the trial, give rise to a real possibility that any properly directed jury might reasonably have reached a different conclusion in the Claimant’s case.

The Claimant sought unsuccessfully to judicially review that decision of the Criminal Cases Review Commission, but his claim was dismissed by the Divisional Court (Laws LJ and Mitting J) on 7 June 2007 [2007] EWHC 1923 (Admin). The Claimant then made a second complaint to the European Court of Human Rights, but this application was declared inadmissible on 4 January 2011 (Dowsett v United Kingdom (2011) 52 EHRR SE10). The Claimant’s history shows that he is not reluctant to pursue his complaints, which, as I will explain, could be relevant when considering the sincerity of his complaints.

The basis of the Claimant’s case on discrimination stems from the Equality Act 2010 (“EA”), which prohibits discrimination in respect of treatment that occurred on or after 1 October 2010. The Claimant’s case is that the Secretary of State’s decision not to allow him to refuse to be subjected to “rub-down” searches by female officers on grounds of his sincere and genuine objection, which fell short of the religious and cultural exceptions, amounted to a “continuing act” by the Secretary of State. This was unlawful under the previous legislation with the consequence that the Claimant’s complaints can all be dealt with under the EA in accordance with the transitional provisions set out in Article 7 of the Equality Act 2010 (Commencement No. 4 Savings, Consequential, Transitional, Transitory and Incidental Provisions and Revocation) Order 2010.

Direct discrimination is defined in s.13(1) EA in this way:-

“A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”

The “protected characteristics” relevant to this application are sex (s.11); and a lack of religion or belief (s.10). In consequence:-

Discrimination is only unlawful if carried out in the contexts and in the circumstances specified in the legislation. Section 29(6) EA provides, so far as relevant that:-

“A person must not, in the exercise of a public function … do anything that constitutes discrimination”.

It is also common ground that searching of prisoners is a “public function” (EA s 31(5)).

In deciding whether there was direct discrimination, the court must decide for itself:-

“… essentially a single question: did the Claimant, on the proscribed ground receive less favourable treatment than others?”(Aylott v Stockton on Tees Borough Council [2010] IRLR 994 CA, per Mummery LJ [41]).

It is clear from the legislation and authorities that the Court in resolving that issue would be wrong to apply a traditional Wednesbury approach because it has to make a hard-edged decision. The Secretary of State does not have a discretionary area of judgment and there is no justification defence open to the Secretary of State. There are two elements to be determined in a direct discrimination claim, namely first less favourable treatment and second the reason for that treatment (see Lord Browne-Wilkinson in Glasgow City Council v Zafar [1998] ICR 120, 123).

In Shamoon v Chief Constable of RUC [2003] ICR 337, Lord Nicholls of Birkenhead explained how these questions should be approached when he said that: -

“7.

…In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the Claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the Claimant. Thus the less favourable treatment issue is treated as a threshold which the Claimant must cross before the tribunal is called upon to decide why the Claimant was afforded the treatment of which she is complaining.

8.

No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the Claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.”

It is common ground, or at least not disputed, that: -

The Issues that have to be considered on this application are whether the Secretary of State’s policy on cross-gender rub-down searching: -

The Submissions

The Claimant contends that the “rub-down” searches to which he has been subjected against his wishes by female staff constitute unlawful direct sex discrimination contrary to section 13(1) of the EA. The basis of the submission is that:-

Ms Williams seeks to derive importance from the decision in the case of Home Office v Saunders [2006] ICR 318 to which I have already referred, because one of the grounds of appeal was that the Employment Tribunal erred in finding that the Claimant had suffered less favourable treatment on the basis that she was required to overcome feelings of distaste and indecency, while a male officer:-

“is entirely protected from the possible feelings of inappropriate self-consciousness, from the innuendo and possible allegations of misconduct that may arise because the prison system forbids him from carrying out a search on a women”

(Paragraph 44 of the Employment Tribunal’s decision quoted in Paragraph 3 of the Employment Appeal Tribunal’s decision).

Mr Swift points out correctly in my opinion that the Employment Appeal Tribunal explained that it did not “appear that the employers challenged this evidence in any meaningful way at the Employment Tribunal and we do not see how it is open to them to challenge the Employment Tribunal’s conclusion on the issue of less favourable treatment”. So I am unable to agree with Ms Williams that I can derive assistance from this aspect of this case, which was based on a fact-sensitive decision of the Employment Tribunal, which in turn was based on the failure of the employers to pursue the point which is now under consideration.

Ms Williams also contends that the Saunders decision gives support to her submission that some male prisoners will find cross-gender searching to be “less favourable” because it implies that it would be much easier for a man searching a man to maintain an entirely professional approach and to distance himself from any sexual self-consciousness. This, she says, implies that the same-gender searching does not involve possible feelings of inappropriate self-consciousness arising from the innuendo and possible allegations of misconduct that might arise under cross-gender approaches. This argument fails to appreciate that the decision in Saunders was fact-sensitive and that it depended upon the evidence or lack of evidence adduced. As I have explained, in the Saunders case the employers did not put forward any cogent evidence on this point.

Mr Swift’s starting point in response is to attach importance to the concession made in the Claimant’s Skeleton that “the Claimant nowhere argues that male prisoners should only ever be searched by male staff”. He contends that the Claimant must therefore be taken to accept that the Secretary of State is entitled to adopt different policies for male and female prisoners in relation to rub-down searching. I accept this contention and also his further submission that it then follows that the Claimant must be taken to accept first that the circumstances of male and female prisoners are not materially the same, and second that a policy that requires female prisoners only to be searched by female staff but which permits male prisoners to be searched by female staff does not in itself automatically constitute less favourable treatment for male prisoners. Put in another way, the concession to which I have just referred means that the Claimant accepts the fact that there are policy differences between male and female prisoners when it comes to rub-down searches which cannot be regarded for that reason alone as constituting sexual discrimination.

In the present case, Mr Swift contends that there are a number of important differences between the male and female population, which justify different treatment. He points out that in paragraph 6 of the 1992 Circular (which I have set out in paragraph 17 above) the justification for the different rules relating to the sex of the prison officer who could carry out rub-down searches on male and female prisoners was explained.

The reason for different approaches to searching male and female prisoners was repeated in the report of Baroness Corston’s Review to which I have referred in paragraphs 21ff above. It did not deal with rub-down searches, but it sets out a number of important differences between the male and female prison population, which are relevant in determining the sex of those who should be permitted to search prisoners. As I have explained in paragraph 22, according to the Review, these differences related to crucial matters such as the vulnerability of female prisoners in the light of their likely previous experience of being the victims of sexual assault and their overall vulnerability. This reflected one of the points, which had been made in the 1992 Circular and in the report of Baroness Corston’s Review to which I have referred in paragraph 17 and 21ff respectively above.

Discussion on the claim of sex discrimination directed towards the policy

To my mind, there are two reasons why I must reject the claim that the cross- gender rub-down policy for male prisoners constitutes sexual discrimination. First, as I will explain, the reason behind the different treatment for male and female prisoners shows that I must answer in the negative the crucial question posed by Mummery LJ and to which I referred in paragraph 45 namely “did the Claimant, on the proscribed ground receive less favourable treatment than others?”

The Claimant in the words of his Skeleton “nowhere argues that male prisoners should only ever be searched by male staff” and, as I have explained, this shows not merely that the Claimant accepts that the Secretary of State is entitled to have policy of rub-down searches but that he can have a policy for male prisoners different than the one for female prisoners.

As was explained by Phillips LJ (as he then was) in Smith v Safeways [1996] ICR 868, 876 G:-

“There is an important distinction between discrimination between the sexes and discrimination against one or other of the sexes. It is the latter that is forbidden by the Sex Discrimination Act 1975. Discrimination is defined as being treated less favourably. In my judgment, this is plainly the meaning of discrimination in Directive 76/207, and the 1975 Act fully reflects that Directive. In many instances, discrimination between the sexes will result in treating one more favourably than the other, but this will not necessarily be the case. If discrimination is to be established, it is necessary to show not merely that the sexes are treated differently, but that the treatment accorded to one is less favourable than the treatment accorded to the other.”

In that case, the issue was whether a policy which allowed female staff to have their hair long was discriminatory as far as male staff were concerned as they were not allowed to wear their hair long and in unconventional hair styles. So they could not wear their hair in a pony-tail style. The Industrial Tribunal had held that although the employers had different rules governing dress and appearance for men and women, they were not discriminatory in allowing different hair lengths for male and female staff. The Employment Appeal Tribunal allowed the employee’s appeal with Pill J (as he then was) dissenting, but the Court of Appeal then allowed the employer’s appeal.

Phillips LJ (at pages 876 and 878) accepted the submission first that rules concerning appearance will not be discriminatory just because their content is different for men and women if they enforce a common principle of smartness or conventionality, and second that taken as a whole, neither gender is treated less favourably in enforcing that policy.

Peter Gibson LJ agreed and he explained at page 881 that the Industrial Tribunal was entitled to conclude that there was no discrimination on grounds of sex because:-

“The employers’ rules for men and women, although differing in detail, possess as a common feature requirements as to appearance that excluded the unconventional. The employers wished to present a conventional image for the sound commercial reason that was what their customers wanted. The rules were applied rigorously both for men and women”.

It is important to repeat at this juncture and to stress the concession made in the Claimant’s skeleton that “the Claimant nowhere argues that male prisoners should only ever be searched by male staff”. This shows that it is accepted by the Claimant that the fact that male prisoners are treated differently from their female counterparts does not in itself automatically constitute discrimination on grounds of sex. In the present case, the approach of the Secretary of State was first to allow cross-gender rub-down searching where appropriate for good and sensible operational reasons as explained in paragraph 16 above, but that second to grant exceptions where there were good reasons for doing so. For the reasons explained in the 1992 Circular (set out in paragraph 17 and 18 above) and Baroness Corston’s review (summarised in paragraph 21ff above), there were sound reasons for not permitting female prisoners to be rub-down searched by male officers. Similarly there were good reasons for granting exceptions for certain groups of male prisoners as explained in the 1992 Circular, the PSIs and in the 2012 Guidance.

So in the same way as there were different rules for male and female employees specified in the Safeway case which had common features but which were adapted differently for valid reasons which were not proscribed under the EA, the different rules in this case on cross-gender rub-down searches for the different sexes enforce a common principle of granting exceptions where there are clearly thought-out and sensibly drafted reasons for doing so. In the case of females, those reasons were, as explained in paragraph 6 of the 1992 Circular as set out in paragraph 17 above, because first “considerations of privacy and decency are more likely to arise” and second they are more likely to have been the victims of abuse by men. In the case of males, the conclusion was that religious and cultural exceptions should be granted and these exceptions have been properly defined. The existence and nature of these exceptions are consistent with the policy of granting exceptions where there were good reasons for doing so. The research and the lack of other similar complaints (other than the belated ones from the Claimant’s two colleagues) after 20 years of the policy’s life show that they are fair, proportionate and reasonable. As the fact-finder in this case, I have concluded that the religious and cultural exceptions were based on sensible grounds and which enforce a common principle of granting exceptions and so they are not discriminatory on what are described in the EA as “proscribed grounds”. So I am unable to accept that the carefully considered “cultural” ground for permitting male prisoners not to be subject to cross-gender rub-downs can be regarded as constituting sex discrimination because it covers “sincerely and deeply held beliefs”, but does not extend to embrace a genuine and sincere objection that “cross-gender searching causes discomfort or distress” especially as the Claimant accepts that male prisoners should not always be searched by male staff. I therefore reject the contention that the policy of the Secretary of State in relation to the exceptions for male prisoners is discriminatory on grounds of sex.

The second reason why I reject the Claimant’s case that the policy was discriminatory on grounds of sex is that the Courts can and should apply a de minimis approach to the Claimant’s complaint of sex discrimination bearing in mind the extremely slight difference between the Claimant’s complaint and those cases covered by the cultural grounds exception. A male prisoner can object on religious and cultural grounds as I have explained in paragraph 10 above and in particular where he can show that he has a “sincerely and deeply held belief” which will require him in the words of the 2012 Guidance (with emphasis added) to: -

“(a)

explain what the sincerely held belief is; (b) set out the reasons why he holds that belief; (c) explain why that belief means that he objects to a rub-down search being performed on him by a female member of staff. In many if not all cases it is to be expected that the prisoner will be able to demonstrate that being searched by a female member of staff will be a cause of genuine distress”.

This is a wide exception, which would cover most genuinely and sincerely held beliefs, which can be explained by the prisoner concerned, but according to Ms Williams, it does not include the case in which a prisoner has, in the words of her skeleton, a “genuine and sincerely [objection] that cross-gender searching causes discomfort or distress” because such objections do not fall within the “sincerely and deeply held belief” objection which is comprised in the existing “cultural grounds” exception.

In this case, the complaint of the Claimant is that this policy makes the Claimant feel “uncomfortable and embarrassed”. The differences between a cultural objection (“sincerely and deeply held belief”) and the “genuine and sincere” objection as contended for by Ms Williams is exceedingly slight. Indeed in almost all cases where there is a genuine and sincere objection, this would fall within the cultural objection which would permit male prisoners not to be subject to cross-gender rub-downs.

In my view, this distinction comes within the de minimis exception which formed one of the bases of the decision of the Court of Appeal in Peake v Automotive Products [1978] 1 QB 233 in which a claim for sex discrimination was rejected in a case in which women were allowed to leave the factory five minutes earlier than men on the grounds that the discrimination was one to which the rule of de minimis non curat lex applied (per Lord Denning MR at page 939 H and per Goff LJ at page 240B).

Lord Denning MR said in his judgment in the subsequent case of Ministry of Defence v Jeremiah [1980] 1 QB 87 at page 98 of the decision in the Peake case that: -

“On reconsideration…the only solid ground was that the reconsideration was de minimis. Mr Lester told us that, on a petition to the Appeal Committee of the House of Lords, they refused leave to appeal for that reason. ”

No case was cited to show that the de minimis principle does not apply or no longer applies to sex discrimination cases, although I accept that it should be applied with caution and it should not be used to undermine the basic principles of sex discrimination. Nevertheless, I believe that this principle is an answer to the sex discrimination case based on policy bearing in mind the width of the cultural grounds exception as explained in the 2012 Guidance, and the exceedingly limited circumstances in which a prisoner could have a genuine and sincere objection to cross-gender rub-down searches without also being able to invoke the cultural ground exception as a sincerely and deeply held belief amounting to a genuine objection to being searched by a female member of staff on cultural grounds. For the purpose of completeness, I should add that if the test for determining the Claimant’s case was Wednesbury unreasonableness, it would fail by a substantial margin essentially for the reasons which I have set out.

Discussion on the Claim that each of the Rub-Down Searches of the Claimant carried out by a Female Officer constitutes Sex Discrimination against him.

Until now, I have been considering whether the Secretary of State’s rub-down policy constitutes sex discrimination. I have concluded that the policy does not constitute sex discrimination, but I must also consider in case I am wrong and the policy is discriminatory on grounds of sex whether the Claimant has a personal claim. This entails considering the sincerity of the Claimant’s complaints in the light of the history of his complaints, some of which I have referred to in paragraphs 38 to 40 above.

The Claimant contends that he has been the victim of sexual discrimination during the 1500 searches by female staff to which he has been subjected against his wishes. It is true that from the searched person’s point of view, all searches are undesirable, but it has not been suggested that any of the searches that were undertaken were carried out in anything other than an appropriate and proper manner. They do not involve touching of genitals or other sensitive areas of the male prisoner and who remains clothed throughout each of the rub-down searches, save for removing his shoes and any headgear.

The case for the Secretary of State is that the history of the Claimant’s complaints about the policy shows that he does not genuinely feel any particular sense of discomfort and embarrassment of cross-gender searches. It is true that between 1992 (when the 1992 Circular introduced the cross-gender search policy) and 2005, the Claimant made no complaints despite having made many other complaints relating to other matters.

Ms Cuthbertson states that the Secretary of State does not now have copies of all the complaints submitted by the Claimant prior to 2005 except for a few complaints, which have passed to the Prison and Probation Ombudsman and to NOMS headquarters. These include his complaints about disclosure of documents, the price of canteen goods, visits, harassment by staff, access to laptops and the delay in handling complaints.

It is likely that he made many other complaints prior to 2005, and the Claimant has not suggested otherwise or that he made any complaints in this period about rub-down searches of him being conducted by female prison officers. It is noteworthy that since 2005 the Claimant has submitted in excess of 200 other complaints, and they have a wide variety of themes, such as noises from the pipes and taps, noise levels on the wing, legal correspondence, property, the price of canteen goods and items missing from goods ordered.

On 24 February 2005, for example, he complained that the Prison Service was sexually discriminating against him by allowing women prisoners the right to wear their own clothes but denying the same right to male prisoners. He lodged a further complaint on 4 March 2005 on this matter, but it was rejected. It can be seen not only that the Claimant was not reluctant to complain about matters of which he did not approve, but also that he was ready, willing and able to do so clearly and forcefully.

The Claimant’s complaints relating to cross-gender searches start on 10 February 2005 in which he merely said that the policy of “allowing female staff to carry out rub-down searches on my person” constituted acts of “sexually discriminating against me” as male staff were not allowed to carry out such searches on female prisoners. This complaint was rejected and the Claimant then appealed alleging “sexual discrimination”, without giving any particulars, but his appeal was dismissed. He then complained to the Prison and Probation Ombudsman but this complaint was rejected in a letter dated 18 October 2005 explaining that Prison Service Headquarters would not be changing their policy. The letter recorded that the Ombudsman’s investigator was told by the Claimant that he objected to being rubbed down on “strong moral grounds”, but significantly the letter states that the Claimant was then unable to expand on this. No complaint was made about the effect on the Claimant of being subjected to rub-down searches by females and no mention was made of him suffering distress and embarrassment.

In a witness statement, the Claimant explained that he did not make an earlier complaint because he had not appreciated that women could not be rub-down searched by men until earlier in 2005 when another prisoner had told the Claimant that his girlfriend, who was also a prisoner, could not be subjected to a rub-down search carried out by a male prison officer.

The Claimant then made a further complaint on 2 August 2010 in which he explained that HMP Highpoint “operates a highly discriminatory policy of sexual discrimination” because male staff were not allowed to carry out rub-down searches on female inmates, but nothing was then said by the Claimant about the effect that it has on him. That complaint was rejected.

What is significant is that the Claimant was not complaining at this time that he was suffering any hardship or embarrassment because of these rub-down searches carried out by females. The Claimant’s solicitors sent a detailed pre-action protocol letter to the Secretary of State dated 8 October 2010 in which they contended for the first time that rub-down searches by female officers made him feel “self-conscious and embarrassed”.

The Claimant was moved to HMP Kirkham on 4 October 2011 where he was subjected to approximately one rub-down per week with a 50:50 chance that the search would be carried out by a female officer.

When Mrs Cuthbertson made her witness statement on 25 April 2012, she said that the Claimant’s Offender Supervisor had told her that the Claimant had not submitted any complaints with regard to searching or any other issue since his move there in October 2011.

Later in 2012, the Claimant requested that he should not be subject to a rub-down search by female officers, but that request was rejected. He therefore submitted a complaint to HMP Kirkham on 24 December 2012 (which was more than two years after making the present judicial review application) complaining about the rub-downs by female officers. He complained for the first time that:-

“rub-down searches by women prison officers make me feel uncomfortable and embarrassed. Because of my age (I am 66 years old) and my upbringing (through my life I have only really had close contact with my female members of my immediate family)”.

The Claimant received a reply from Mr Dean Corbishley, who is understood to be Head of Security at the Prison, in which it was pointed out that it was not possible to make arrangements for him to be only searched by male staff. Mr Corbishley gave a number of reasons including issues of equality amongst staff and he stated that he would speak to the Claimant personally about it. The Claimant said that a meeting then took place in which he received an explanation as to why he could not be assured that he would not be rub-down searched by female officers in the future.

I should add that there are statements by two other convicted murderers who have now stated that they are unhappy about being rub-down searched by female officers. Mr Dennis Hamilton explains that “he feels uncomfortable and embarrassed each time he is subjected to a rub-down search by a female member of prison staff”, and Mr Carl Jones takes a similar line.

Mr Swift contends that I should conclude from the history of the Claimant’s complaints about the policy that the Claimant himself does not genuinely feel any particular sense of discomfort and embarrassment of cross-gender issues. Indeed it is true that no complaint was made between 1992 and 2005, although the Claimant made many complaints on other matters. I find it very surprising that he did not complain before 2010 that cross-gender searching was causing him discomfort and embarrassment, as he is clearly not reluctant to make complaints and indeed he was a prolific complainer on a vast variety of issues.

As I have explained, it was only after instructing a lawyer that the Claimant, who is articulate and persistent in making complaints about all aspects of prison life, changed his case from claiming that the policy was discriminatory to his claim made for the first time, 20 years after the 1992 Circular was issued that he felt a feeling of discomfort and embarrassment. I feel compelled in the absence of any adequate explanation for his failure to make these very important complaints earlier, to reject his claim in the light of the emergence at this very late stage of his present complaint of discomfort and embarrassment or that he had a “sincere and genuine” objection to cross-gender searching, other than complaining merely that it was discriminatory.

In reaching this conclusion, I have not overlooked the submission of Ms Williams that this point is not open to the Secretary of State because no application had been made to cross-examine the Claimant. To my mind, the burden remains on the Claimant to prove facts necessary for his claim to succeed and Mr Swift is entitled to ask me to draw such inferences as I think fit from the undisputed documents before the Court. At the end of the day, I am quite convinced that on the facts, the Claimant has not shown that he considers that he is less favourably treated or that there is any substance in his claim that he has “a genuine and sincere objection to cross-gender searching”, although that conclusion is academic in the light of my conclusion that the Secretary of State’s policy on cross-gender rub-down policy is not discriminatory.

The Claim of Lack of Religion Discrimination directed to Policy

As I explained in paragraph 42, direct discrimination is defined in section 13(1) EA as covering a case where “because of a protected characteristic A treats B less favourably than A treats or would treat others”. It is relevant for the purpose of the present claim that the “protected characteristics” include “a lack of religion or belief” (section 10(1) and (2) EA).

The case for the Claimant is that if a male inmate objects to cross-gender searching on grounds of religion or belief, he will be excused from it because he falls within the “religious grounds” exception, but this contrasts with the position of an inmate whose objection to cross-gender searching is not based on his religion or belief because he will not be excused from cross-gender searching. Thus it is said by Ms Williams that the Claimant is treated less favourably than a religious objector because of his lack of religious belief.

In order to succeed on this claim, the Claimant must establish that he has first been less favourably treated; second that this less favourable treatment was because of his lack of religious belief when compared with the way in which someone with a religious belief had been or would have been treated; and third that in the circumstances, their positions are materially the same.

Mr Swift submits that the Claimant’s case on this issue fails to appreciate that the policy also permits exemption on “cultural grounds”. So somebody who lacks religious belief is entitled to object to cross-gender searching even if he has no religious belief, provided he falls within the “cultural grounds” exception, which crucially does not require any religious belief. Indeed the reason why the Claimant is not entitled to object to cross-gender searching is not solely because he has no religious belief but rather because he also cannot bring himself within the “cultural grounds” exception. I consider that to be a complete answer to the claim based on religious discrimination. In other words, the reason why the Claimant cannot object to cross-gender searching is because his claim of distress does not qualify for an exemption under that cultural grounds exception and not because he lacks a religious belief.

So I must answer in the negative to the definitive question posed by Mummery LJ “did the Claimant, on the proscribed ground receive less favourable treatment than others?” (Aylott v Stockton on Tees Borough Council (supra) [41]). The reason for that is that the Claimant received less favourable treatment in the sense that he was still subject to cross-gender searching because he did not fall within the cultural grounds exception, which is not a proscribed ground.

Another reason why this claim fails is because I agree with Mr Swift that if no exemption was to be made for prisoners who had religious objection to being searched, this would probably amount to indirect discrimination against such prisoners. So in Copsey v WWB Devon Clays Ltd [2005] ICR 1789, it was considered that the requirement to work on Sundays was indirect discrimination against Christian employees, although justified in that case on the facts.

A further reason why the Claimant’s case cannot succeed is that his circumstances are materially different from someone who has a religious belief because the Claimant by not having a religious belief about contact with the opposite sex is in a materially different position to a person who does have such belief.

It is noteworthy that in relation to a predecessor section, the case law dealing with what constitutes a “philosophical belief” for the purpose of section 10(2) of the EA. In a predecessor version of what is now section 10(2) of the EA, the relevant legislative provisions included a requirement for a philosophical belief to be “similar” to a religious belief in order to qualify for a protection.

The Employment Appeal Tribunal had to review the domestic and Strasbourg jurisprudence on what constituted relevant philosophical beliefs in Grainger plc v Nicholson [2010] IRLR 4 in which Burton J said:-

“26.

I am satisfied that, notwithstanding the amendment to remove ‘similar’, it is necessary in order for the belief to be protected, for it to have a similar status or cogency to a religious belief”.

Burton J had explained that:-

“24.

I do not doubt at all that there must be some limit placed upon the definition of 'philosophical belief' for the purpose of the Regulations, but before I turn to consider Mr Bowers' suggested such limitations, I shall endeavor to set out the limitations, or criteria, which are to be implied or introduced by reference to the jurisprudence set out above:

(i)

The belief must be genuinely held.

(ii)

It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.

(iii)

It must be a belief as to a weighty and substantial aspect of human life and behaviour.

(iv)

It must attain a certain level of cogency, seriousness, cohesion and importance.

(v)

It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and paragraph 23 of Williamson).”

The consequence of this is that by holding a religious belief an individual is placed in a position that is materially different to someone who merely holds an opinion such as the Claimant. Indeed the European Court of Human Rights explained in Campbell and Cosen v United Kingdom (1982) 4 EHRR 293 that:-

“In its ordinary meaning the word “convictions”, taken on its own, is not synonymous with the words “opinions” and “ideas”, such as are utilised in Article 10 of the Convention, which guarantees freedom of expression; it is more akin to the term “beliefs” For those reasons I conclude that the claim based on discrimination on grounds on religion has to be rejected.”

For these reasons this claim based on policy fails.

Claimant’s case based on lack of religious discrimination against him.

For the reasons which I have set out in relation to the claim based on sex discrimination, there is no evidence that the Claimant has sought to be excused from cross-gender searches because of his lack of religious belief. His complaints were based on his discovery that women inmates were differently treated. So even if the policy of the Secretary of State was discriminatory because of a lack of religious belief, the Claimant cannot show that he has been adversely affected by this.

Introduction

Article 8 is a widely drafted provision, which in so far as is material states that:-

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence”

2.

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety…for the prevention of disorder or crime... or for the protection of the rights and freedoms of others”.

The case for the Claimant is that this right is infringed and the Defendant cannot derive any assistance from the qualification in Article 8(2). The Secretary of State’s case is that the right is not engaged, but even if it is, there is no interference because of Article 8(2).

Article 8(1)

Ms Williams relies on the width of Article 8 which “protects the physical integrity of a person, and “a person's body concerns the most intimate aspect of private life” (YF v Turkey [2004] EHRR 715 [33]). She states that there is a low threshold to show a breach of Article 8 as in the words of the Strasbourg Court:-

“Even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8 if it is carried out against the individual’s will” Storck v Germany [2006] 43 EHRR 96, [143].

In response, Mr Swift points out that for there to be an interference with an individual’s right under Article 8, the alleged interference must attain a sufficient degree of seriousness (see Costello-Roberts v United Kingdom (1995) EHRR 112 [36] and M v Secretary of State for Work and Pensions [2006] 2AC 92). This approach was reflected in a statement of R (Gillan and Another) v Commissioner of Police [2006] 2 AC 307 which was concerned with the “stop and search” powers being used by police officers when looking for articles connected to terrorism. Lord Bingham in a speech with which other members of the Appellate Committee agreed said at paragraph 28:-

“I am, however, doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that "private life" has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level.”

This approach was not accepted by the European Court of Human Rights in that case (Gillan and Quinton v United Kingdom (2010) 50 EHRR 45) when it held that “any search effected by the authorities on a person interferes with his or her private life.” ([61]). It unanimously rejected the decision of the House of Lords that a police stop and search was not sufficiently serious to amount to engage Article 8 when it explained that:-

“63.

The Government argues that in certain circumstances a particularly intrusive search may amount to an interference with an individual’s art.8 rights, as may a search which involves perusing an address book or diary or correspondence, but that a superficial search which does not involve the discovery of such items does not do so. The Court is unable to accept this view.”

In reaching that conclusion, the European Court of Human Rights rejected the analogy with searches at an airport by stating that:-

“64.

The Court is also unpersuaded by the analogy drawn with the search to which passengers uncomplainingly submit at airports or at the entrance of a public building. It does not need to decide whether the search of the person and of his bags in such circumstances amounts to an interference with an individual's Article 8 rights, albeit one which is clearly justified on security grounds, since for the reasons given by the applicants the situations cannot be compared. An air traveller may be seen as consenting to such a search by choosing to travel. He knows that he and his bags are liable to be searched before boarding the aeroplane and has a freedom of choice, since he can leave personal items behind and walk away without being subjected to a search. The search powers under section 44 are qualitatively different. The individual can be stopped anywhere and at any time, without notice and without any choice as to whether or not to submit to a search”.

It was suggested by Mr Swift that the European Court of Human Rights might well have been acting on a false basis because before reaching those conclusions, the Court had stated that: -

“61… In Foka, cited above, § 85, where the applicant was subjected to a forced search of her bag by border guards, the Court held that “any search effected by the authorities on a person interferes with his or her private life.”

The researches of Mr. Swift and Ms Stout have shown that the Foka case did not contain that statement quoted in Gillan, but it is clear that compulsory rub-down searches carried out under compulsion in prisons do not have much in common with airport searches, which are voluntarily undertaken. There is clearly an inconsistency between the decisions in Gillan in the House of Lords and in Strasbourg and in that situation, the position is that as was explained by Lord Hope of Craighead in R(Purdy) v DPP [2010] 1 AC 345 that:-

“32…The Court of Appeal held that it was bound to follow the decision of this House and was not at liberty to apply the ruling of the Strasbourg court. No other course was open to it: see Kay v Lambeth London Borough Council [2006] 2 AC 465 paras 28, 42-45, per Lord Bingham of Cornhill; R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311, para 64, per Lord Neuberger of Abbotsbury”.

Nevertheless, as was explained in Gillan, there are a number of factors which are relevant in determining whether a person’s right to private life protected by Article 8 is interfered with by search measures and his or her reasonable expectations as to privacy could be a significant factor in that exercise. I did not hear very detailed submissions on this issue, but my provisional view is that the Claimant as a serving prisoner did not have a reasonable expectation of privacy in the way a person at liberty has that expectation, so his rights under Article 8 (1) were not engaged by the rub-down searches. I stress that this is only a provisional view because, as I will explain, I was and am quite satisfied that the Secretary of State can rely on the qualification in Article 8(2) and so I did not hear full argument on whether his rights under Article 8(1) were engaged.

Article 8(2)

Ms Williams contends that the requirements of Article 8(2) are not satisfied. She says that the trans-gender rub-down searches are contrary to EA and previous legislation, as well as being contrary to public law. I appreciate that the burden is upon the Secretary of State to demonstrate that the requirements of Article 8(2) have been satisfied (R v Shaylor [2003] 1 AC 247 [23] and [45]) For the reasons which I have explained in dealing with Issues A, B, D and E, I consider that the policy under attack is, in the words of Article 8, “in accordance with the law”.

The searches are “necessary… in the interests of public safety… for the prevention of disorder or crime… or for the protection… of the rights and freedoms of others”; Mrs Cuthbertson explains convincingly that the aim of searching inmates in prisons is to ensure that escapes are prevented, that threats to security order and control are detected and deterred and that self-harming by prisoners is reduced. Searches, including the rub-down searches, achieve that aim by reducing the number of illicit items, such as drugs, weapons and mobile phones that are within the prison estate.

The case for the Secretary of State is that the cross-gender rub-down regime satisfies the proportionality test explained by- Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture etc [1999] 1 AC 69,80 of:-

“(1)

having a legislative object sufficiently important to justify limiting a fundamental right because of the matters set out in (a) above; (ii) being designed to achieve that object and being rationally connected to it; and (iii) not going further than necessary to achieve that objective”.

These requirements are satisfied because:-

Another factor which would fortify my conclusion is that the rub-down rules do not infringe Article 8(2) is that the Secretary of State is entitled to a margin of appreciation as to where a fair balance has to be struck between the general interests and the interests of the individual when determining whether Article 8 rights have been infringed. In this case, the balance that has to be struck is between the rights of prisoners, on the one hand, and on the other hand, the rights of prison officers and others who may be affected by security breaches in prison including the interests of individual prisoners in general in keeping the prison free from drugs, weapons and maintaining gender balance on the staff.

Thus for those reasons, the Article 8 claim fails.

Article 14 states that:-

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.

Ms Williams contends that the rub-down policy as applied to male prisoners violates Article 14 of the ECHR when read together with Article 8. Her case is that the complaint of the Claimant comes within the ambit of Article 8 and that there was discrimination on the grounds of the Claimant’s sex and also on grounds of, in the words of Article 14, “other status” namely his lack of religious or cultural belief in terms of cross-gender searching. I doubt if this claim falls with in the category of “other status” but it is unnecessary to decide this point in the light of my other conclusions on this claim.

Her argument proceeds that, as under Article 8, the discrimination was not in accordance with the law and that the Secretary of State has not shown it was necessary and proportionate to a legitimate aim.

The issue of justification also arises because as Lord Hoffmann explained in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, 182 “There is discrimination only if the cases are not sufficiently different to justify the difference in treatment”. This echoes the approach of the Strasbourg Court in DH v Czech Republic (2008) 47 EHRR 3 [81-91].

It therefore follows that there has to be a focus on both whether there has been a “difference in treatment” between female and male prisoners and also whether it can be justified.

Even if there had been less favourable treatment, this would be justified for the same reasons as I explained when considering Article 8(2) and which I have set out in paragraphs 111-114 above. In addition, intention and motive are relevant in deciding if an alleged discriminatory measure is proportional (see AL (Serbia) v Secretary of State [2008]1 WLR 1434 [10] and [48]) but in this case the Secretary of State had sought to reach a fair conclusion and a proper balance between the interests of the male inmates and the operational factors. Thus this complaint cannot be accepted and if, which is not the case, I was in doubt about this conclusion, I would have held that the Secretary of State is entitled to a margin of appreciation which would have ensured that the Claimant’s Article 14 rights were not infringed.

Ms Williams contends that the policy adopted by the Secretary of State in relation to rub-down searching is insufficiently flexible in that it precludes officers from taking into account circumstances that might be relevant in a particular case. She relies on the approach of Lord Browne-Wilkinson in R v Secretary of State for the Home Department ex parte Venables [1998] AC 407, 496 when he said that:-

“When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future. He cannot exercise the power nunc pro tunc. By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.”

I am unable to accept that submission because the policy set out in the April 2012 guidance makes it very clear that the exemption on “cultural grounds”:-

“is a matter to be decided case by case. There are no hard and fast rules. Any assessment should take into account all relevant factors”.

In my view this is precisely what Lord Browne-Wilkinson regarded as acceptable. Indeed it shows rational consideration is required by the prison officer.

The next submission that is made by Ms Williams is that the policy will lead to less favourable treatment of male prisoners because some male prisoners may find cross-gender searches genuinely objectionable. Alternatively she says that there is a substantial risk that the policy will lead to less favourable treatment thus rendering unlawful under common law. She relies on the comments of Wyn Williams J in R (Suppiah) v Secretary of State [2011] EWHC 3 [137] that: -

“I am content to accept that as a matter of law a policy which cannot be operated lawfully cannot itself be lawful; further, it seems to me that there is clear and binding authority for the proposition that a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making is itself an unlawful policy.”

I am unable to accept this submission because the width of the exceptions of religious and cultural grounds in the 2012 Guidance does not lead to “an unacceptable risk of unlawful decision making”. It has to be stressed that the cultural grounds exception is sufficiently wide as to cover the case of an objection “that arises from the sincerely and deeply held belief” which the prisoner has to specify together with explaining the reasons for it and why the belief means that he objects to being rubbed-down by a female officer. As I have explained the policy makes it clear that there are “no hard and fast rules” and the assessment should take into account “all relevant factors”. Indeed the Claimant has been unable to point to a case of unlawful decision-making by prison officers as first his case is that the cultural exception is too restricted and second that it is not being contended or shown that it is being or is at risk of being unlawfully applied. Of course the fact that there is different treatment does not take the matter any further.

Thus this ground must also be rejected because I am unable to accept any of the Claimant’s other submissions on this or any other issue.

For the reasons which I have sought to explain and notwithstanding the very able submissions of Ms Williams I have come to the clear conclusion that I must reject this application.