1 Crown Office Row’s John Joliffe appeared for the Secretary of State for Justice in this case. He is not the writer of this post.
The High Court held last week that disciplining a Muslim prisoner for failing to give a urine sample in a drugs test when he was in the midst of a voluntary fast was a breach of his right to manifest his religious beliefs.
Recent claims or defences on the basis of Article 9, the right to freedom of thought, conscience and religion, have mostly been unsuccessful – see our comments on the Catholic adoption agencies, fostering and Cornish hotel cases, as well as Aidan O’Neill’s feature article. However, in this case His Honour Judge (HHJ) Pelling QC held that the failure to even consider a prisoner’s Article 9 rights meant that the decision to discipline him was fatally flawed.
3-day fast
Mr Bashir is serving a fifteen-year prison sentence. In January last year he, like many prisoners, was required without any prior warning to provide a urine sample for a drugs test, following the Prison Service’s mandatory drug testing (MDT) policy. In his case the test was not random, but because there was reasonable suspicion that he had taken illegal drugs.
However, it transpired that Mr Bashir was on the final day of a three-day voluntary fast, undertaken on the advice of an Imam as spiritual preparation for his Court of Appeal hearing the next day. Having not drunk anything for some time, he unsurprisingly was not able to provide a large enough sample. When he was offered water on several occasions he refused, explaining that he was fasting. As a result he was charged with failing to obey a lawful order. At a hearing before the Independent Adjudicator he was convicted and given an extra 14 days imprisonment as punishment.
The MDT policy makes special provision for Ramadan (and comparable religious festivals that require fasting), allowing drug testing still to be carried out, but very early in the day. The MDT policy states that during Ramadan Muslim prisoners should not be manoeuvred into a position where they have to disobey an order. However, Mr Bashir’s fast was not during Ramadan and not compulsory. It was a voluntary, individual act. The undisputed evidence before the adjudicator from the prison Imam was that Mr Bashir was a devout Muslim, that it was a recognised practice in Islam to engage in an individual, voluntary fast for three days for particular personal reasons, and that ‘if you start to fast you should go straight with it to the end‘. However, the adjudicator held that while the MDT policy made special provision for religious festivals, this was not a religious festival and Mr Bashir therefore had to bear the consequences of his personal decision, which was that he had disobeyed a lawful order.
The challenge
Mr Bashir brought a claim for judicial review of the adjudicator’s decision, on the basis that (1) his conviction was wrong in law on the evidence available (i.e. that the reasons given were insufficient), (2) the finding of guilt was perverse (i.e. that Mr Bashir had clearly not intended to disobey the order) and (3) requiring him to provide a sample when he was fasting for religious reasons was contrary to Article 9.
HHJ Pelling QC rejected the first and second arguments. On the Article 9 issue, though, he held that the adjudicator should have considered three questions:
i) Are the Claimant’s rights under Article 9 engaged?
ii) If so, has there been an interference with those rights?
iii) If so, was the interference one that was both prescribed by law or necessary in the interests of public order, health or morals and proportionate to the end pursued?
The adjudicator did not consider these questions, either expressly or implicitly, and so HHJ Pelling QC held that he had taken a wrong approach and the decision had to be quashed unless it could be demonstrated that a reasonable adjudicator directing himself correctly would have come to the same conclusion.
Applying Article 9 properly
The Secretary of State argued that had the proper approach been taken Article 9 would not be engaged at all, because this was a personal decision not a religious festival. However, the court rejected this – all that is required for Article 9 to be engaged was for there to be an intimate link between the act of fasting and the belief. In this case the link was not challenged before the adjudicator.
The Secretary of State then argued that requiring a urine sample was not an interference with Article 9. He based this on case-law which provides that where a person has voluntarily accepted a situation where his religious beliefs are not accommodated (e.g. by taking on a job where he has to work on Sundays) there is no interference. Mr Bashir, it was argued, had by committing a serious crime voluntarily accepted the restrictions of being in prison. HHJ Pelling QC rejected this analysis, being unconvinced that a choice of employment could be compared to being a prisoner.
Finally, the Secretary of State argued that requiring Mr Bashir to give a urine sample was a proportionate interference. It was clear that preventing drug abuse in prisons was a legitimate aim, but the court was unimpressed with the proportionality evidence provided:
The evidence does not focus on what steps could have been taken in relation to this particular Claimant in his particular circumstances. It does not explain why testing could not have been undertaken after sunset…or why such a test taken in such circumstances would not have been or was likely to have been pointless. The quality of the evidence made available to me leads me to think that the Prison Service has not attempted seriously to assess the impact of making adjustments for Muslims undertaking personal fasting. All this leads me to conclude that disproportionality based on costs and administrative inconvenience has not been demonstrated.
As a result, on the facts, the court held that if proper consideration had been given to Article 9 the adjudicator would not have convicted Mr Bashir.
Comment
Despite Mr Bashir’s success, this ruling is probably relatively limited in practical effect. HHJ Pelling QC suggested that there were various factual scenarios which could have meant Mr Bashir’s Article 9 rights were not breached. For example, if there was a system whereby prisoners had to report in advance that they were fasting, which Mr Bashir had failed to comply with. Or if there was evidence that under Islamic law a fast could be broken if necessary (such evidence was actually provided in the judicial review, but it hadn’t been put before the adjudicator so it was irrelevant). Or if there was evidence that a claim to be fasting was false or not a genuine belief -e.g. where a prisoner had been seen eating the day before, or where the Imam had never seen head nor tail of the prisoner before he suddenly declared out of the blue when a drugs test was required that he was a devout Muslim.
Moreover, if it was demonstrated that there were good reasons in a particular case why a drugs test had to be conducted at a certain time, this could make an interference with religious freedom proportionate.
The judge also made it very clear that nothing in his decision had any impact on the lawfulness of the MDT policy generally. Despite this, it might make sense for the Prison Service to amend the policy in the light of this judgment to include reference to voluntary fasts (if shown to be genuine) or to introduce a reporting system such as that referred to in the judgment.
However, this case is a warning more generally to all public authorities that if an issue of religious belief or practice arises in any decision-making process the Article 9 rights of the person involved must be considered. If no consideration is given to religious freedom at all the decision-maker is likely to be on shaky ground, whatever the context.
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- Adoption, same-sex couples and religion – again
- Squaring equality with religion – Aidan O’Neill QC
- Analysis: the place of religion in foster care decisions
