Policy allowing cross-gender searches in prisons not unlawful, says High Court
4 April 2013
The Queen (on the Application of James Dowsett) v Secretary of State for Justice  EWHC 687 (Admin) – read judgment
The secretary of state’s policy in respect of rub-down searches of prisoners, which allows cross-gender searches in the case of male prisoners but not for female prisoners, does not discriminate against male prisoners on grounds of sex.
The claimant, who has been a serving prisoner since 1989, challenged Secretary of State’s policy made under section 47(1) of the Prison Act 1952. This is the policy 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 (a cultural ground means an objection that arises from a sincerely and deeply held belief, so it is not clear how this ground differs from religion). In consequence, the claimant had been searched by female officers on many occasions. Current policy with regard to female prisoners was that they could only be searched by female staff.
Dowsett did not argue that male prisoners should only ever be searched by male staff. He complained that the cultural grounds exception was too limited and should be extended to cover cases where male prisoners had a genuine and sincere objection that cross-gender searching would cause discomfort or distress. The issues before the court were whether the policy
- Amounted to discrimination on grounds of sex
- Amounted to discrimination on grounds of lack of religion
- Infringed the Claimant’s rights under Article 8 and Article 14 of the Convention, and
- Constituted a breach of public law principles by being sufficiently flexible, unfair and irrational
Prison Searches: Legal Background
There was a time when prison rules only allowed for prisoners to be searched by officers of the same sex. But in 1992 this rule was revoked.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 One of the main reasons why the old policy was revoked was that there were a growing number of female officers employed in male prisons, who were disadvantaged as they could not undertake the full range of duties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.
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 (Home Office v Saunders  ICR 318 ). 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.
The application was dismissed.
Reasoning behind the judgment
No Discrimination on grounds of sex
The claimant did not argue that male prisoners should only ever be searched by male staff. This showed not merely that the claimant accepted that the Secretary of State was entitled to have policy of rub-down searches but that he could have a policy for male prisoners different than the one for female prisoners. That did not automatically constitute discrimination on grounds of sex. The approach of the Secretary of State was first to allow cross-gender rub-down searching where appropriate for good and sensible operational reasons, but then to grant exceptions where there were good reasons for doing so. There were sound reasons for not permitting female prisoners to be searched by male officers, namely that considerations of privacy and decency were more likely to arise and they were more likely to have been the victims of abuse by men. Similarly there were good reasons for granting exceptions for certain groups of male prisoners and those exceptions had been properly defined. The lack of similar complaints showed that the exceptions were fair, proportionate and reasonable.
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. (para 65)
Lack of Religion Discrimination
A prisoner who lacked religious belief was still entitled to object to cross-gender searching provided he fell within the cultural grounds exception. Indeed, the reason why this claimant was not entitled to object was not solely because he had no religious belief but rather that he could not bring himself within the cultural grounds exception, and that was a complete answer to any claim based on religious discrimination.
No breach of Articles 8 or 14
Silber J’s provisional view was 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. In any event, the judge was quite satisfied that the Secretary of State could rely upon the qualification in Article 8 (2) that the policy was “in accordance with the law” and necessary in the interests of public safety and for the prevention of disorder and crime. The Justice Secretary had a broad margin of discretion in striking a balance 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. Therefore, there was no breach of Article 8. This margin of appreciation ensured that the Secretary of State had not disregarded the prohibition on discrimination under Article 14 .
No breach of public law principles
The policy did not preclude officers from taking into account circumstances that might be relevant in a particular case. Indeed it specifically stated that the exemption on cultural grounds was a matter to be decided case by case and showed that rational consideration was required by officers. The policy under challenge makes it clear that there are “no hard and fast rules” and the assessment should take into account “all relevant factors“. Indeed the claimant had not been able to point to a case of unlawful decision-making by prison officers. The policy was therefore sufficiently flexible and did not constitute a breach of public law principles.
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