Policy allowing cross-gender searches in prisons not unlawful, says High Court

4 April 2013 by

searchThe Queen (on the Application of James Dowsett) v Secretary of State for Justice [2013] 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.

Background

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

  1. Amounted to discrimination on grounds of sex
  2. Amounted to discrimination on grounds of lack of religion
  3. Infringed the Claimant’s rights under  Article 8 and Article 14 of the Convention, and
  4. 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 But in 1992 this rule was revoked.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 One of the main reasons why the old policy was revoked was that there were a growing number of female officers employed in male prisons, who were disadvantaged as they could not undertake the full range of duties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 [2006] 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.
Sign up to free human rights updates by email, Facebook, Twitter or RSS

Related posts:

5 comments


  1. Why in the name of all that’s decent, or what remains decent in the remnants of what our twenty-first century calls ‘society’, do we have to raise such a fundamental issue? Is it beyond all that goes with common sense and old-fashioned decency, to acknowledge that it is more appropriate for men to deal with male prisoners, and women with female prisoners?

    I accept that by meriting prison, prisoners of both sexes have to forfeit certain rights and privileges, but surely further degradation and humiliation should not be part of their punishment?

    By the same token, prison-officers, whether male or female, should not subjected to more stress than is necessary in what must already be a very stressful occupation. The whole scenario is fraught with dangers of abuse and intimidation.

    1. Jack Bond says:

      I agree with you completely. Human kind has made some great advances but seems it has digressed in other areas.

      To stray from the innate sense of common human dignity which requires no rationalizing or explanation is very troubling. Humans are not animals. To treat people in this disrespectful way for the sake of mechanical efficiency is a slide back into the primordial ooze.

      I think the word “High” for this Court has taken on a different meaning.

  2. Andrew says:

    “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.”

    The second reason adds up; not so the first.

    I find the idea that a male prisoner may have to be submitted to a rub-down search by a woman appalling. Is there not a GOQ applicable here so that if not having such a policy meant from time to time recruiting men and not women as prison officers that would be lawful?

    1. Jack Bond says:

      This policy is clearly gender-discrimination against males. How it could be seen in any other way is beyond comprehension.

  3. John Allman says:

    He might have discovered that he had become unpopular amongst other male prisoners, if he had argued that females could never rub down males, and won.

    One cannot help wondering how long it will be before a prisoner who self-identifies as having a homosexual orientation, of as having been the victim of male-on-male sexual abuse, objects to being rubbed down by male prisoner officers, and demands only to be rubbed down by female prisoner officers in future.

Comments are closed.

Welcome to the UKHRB


This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates


Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges Obituary parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: