BK & Anor v The Secretary of State for Justice [2015] EWCA Civ 1259

[2015] EWCA Civ 1259Case No C1/2014/2551
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
THE ADMINISTRATIVE COURT
(LADY JUSTICE RAFFERTY DBE AND
MR JUSTICE COLLINS)
CO/8076/2013, CO/6316/2013, CO/6315/2013
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/12/2015
Before
LORD JUSTICE MOORE-BICKVICE PRESIDENT OF THE COURT OF APPEAL (CIVIL DIVISION)LORD JUSTICE DAVISLORD JUSTICE SIMON
Between
BKAppellantsRHAppellantTHE SECRETARY OF STATE FOR JUSTICERespondent
HELEN MOUNTFIELD QC and ANITA DAVIES (instructed by Lound Mulrenan Jefferies Solicitors) for AppellantsCATHRYN MCGAHEY (instructed by the Government Legal Department) for RespondentHearing Hearing dates: 28 th October 2015
Judgment

Introduction

[1]The appellants BK and RH are women serving custodial sentences. On 28 February 2013 they were separately, while at HMP Send, subjected to full body searches (otherwise known as strip searches) in their cells. It has since been conceded that the searches were unlawful. Their claims for damages, liability having been admitted, are, as we were told, proceeding in the County Court.[2]One might have thought, liability having been admitted, that that would be the end of the matter in terms of legal proceedings. But that has not been the case. By claim forms issued on 23 May 2013, each of the appellants has further pursued claims that the prison policy by reference to which the searches were purportedly carried out (PSI 67/2011) has infringed, in certain respects relevant to women prisoners who may be subjected to full-body searches, Article 3 and/or Article 8 of the European Convention on Human Rights.[3]The Divisional Court (Rafferty LJ and Collins J) rejected those arguments, by a judgment of the court delivered on 22 July 2014. Permission to appeal was granted by Burnett LJ on 15 January 2015.[4]It may be added that the Divisional Court was also concerned with a like claim by another female prisoner at HMP Send, LT. However, LT has, in the light of the admission of liability on behalf of the Secretary of State, not further pursued the matter and has withdrawn from this appeal.[5]Before us the appellants were represented by Ms Helen Mountfield QC and Ms Anita Davies. The respondent Secretary of State was represented by Ms Cathryn McGahey. The background facts (1). BK[6]The appellant BK who was born in 1963, was serving an indeterminate sentence of imprisonment for public protection for an offence of manslaughter. She had pleaded guilty on the basis of diminished responsibility. The victim had been her partner, with whom she had been in an abusive relationship. The minimum term had been set at the relatively low figure of 1 year 303 days, with credit for time spent on remand in custody. She has been in custody since 4 October 2006.[7]The evidence was that she had been the victim of sexual abuse as a child. She has active symptoms of mental illness and has suffered acute episodes of such illness. She has been diagnosed with post-traumatic stress disorder and borderline personality disorder. She has been managed in custody under the Care Programme Approach and has on occasion been held in safer custody through concerns at the high risk of self harm or suicide. She had been seeing a psychiatrist on a monthly basis while in prison.[8]A very full independent psychological assessment, set out in a report dated 14 January 2013, considered that, at that time, she represented a low to medium risk of committing violence. Her risk of self-harm and suicide remained high. She was assessed as a vulnerable adult, whose past history of abuse had led her, coupled with drinking issues, to violence. She was, however, considered to have acquired good insight into her difficulties.[9]BK was transferred to HMP Send in 2011. She is an enhanced prisoner under the privileges scheme. She has no adjudications. In fact her last adjudication was in 2006, at a time when she was on remand in HMP Holloway. Her unchallenged evidence was that she had always worked hard to build good relationships with staff. She has never tested positive on any mandatory drug test.[10]Her evidence also was that she had only once previously been strip-searched: that was in 2006, when she was first received into HMP Holloway.[11]At around 8 o’clock in the morning of 28 February 2013 two female prison officers came into her cell. They were wearing gloves. They closed the door and said that they had to strip-search BK and also to search her cell. When she asked why, they said that the searches were targeted. She was made to remove all her top clothing and was inspected. She then put her top back on and was told to remove her trouser bottoms and underwear and spread her legs; she again was inspected. There was no internal examination. The cell was then searched. Nothing was found either on her person or in her cell. She was most distressed. Her undisputed evidence was that the officers in fact expressed to her their surprise that her “name came up”.[12]Since then she has, according to her evidence, been scared and distrustful towards staff. There have been incidents of self-induced vomiting and suicidal thoughts. She said: “I feel humiliated, embarrassed, violated and ashamed”.[13]A record of cell search was subsequently completed using a typed pro-forma form (F78). As completed, that described the search as “Targeted”. The reason for the search was described as: “Alcohol/Drugs”. The body search was recorded as a Level 1 search. That was incorrect. Level 1 connotes a search where underwear is not removed. Here, as is common ground, her underwear had been removed. The search should thus have been recorded as a Level 2 search. The Form also recorded that a dog, identified as “Archie”, had been used.[14]BK made a written complaint on 16 March 2013. By then she had been told that a dog had given an indication towards her cell: she complained, however, that at the time of the search the officers had told her they could not tell her why she and her cell were being searched. She complained of the effect on her. The written answer, dated 26 March 2013, of the Head of Security and Operations at HMP Send was to the effect that no one, under prison rules, was exempt from searching. The letter stated that when the drug dog shows interest “we are required to undertake appropriate action, which was the case in question”. The letter noted also that the Mental Health Team had been asked to make contact with her and explore her concerns. In this regard the letter stated “….searching is part of prison life and you may well have to deal with similar events in future”.[15]Thereafter, solicitors’ correspondence ensued. Initially it was maintained on behalf of the respondent Secretary of State that the search had been a Level 1 search. However, by the time the Acknowledgment of Service was put in it was conceded that it had been a Level 2 search. It was also conceded that the search had been unlawful because it was “not carried out in accordance with policy”: whilst it was maintained that the policy itself was lawful. The Acknowledgment of Service further asserted that the background to the searches was the alleged admission by a prison officer that she had allowed unlawful contraband onto the wing, leading to disorder. (2). RH[16]RH, who was born in 1976, was sentenced to a life term for murder on 18 May 2007. The victim had been the wife of a man with whom she was having a relationship.[17]RH had in the past been in relationships with men involving sexual abuse. She had a history of depression and excessive reliance on alcohol. A detailed End of Therapy Report prepared in 2010 referred to issues with self-esteem, isolation and emotional control.[18]Since being incarcerated in prison RH at no time had received any adjudications. She was an enhanced prisoner under the privileges scheme. She had not previously been the subject of a full body search. Both under the mandatory testing schemes and under the voluntary testing schemes in which she had participated at various prisons the results were always negative. It was not made clear on the evidence just when she was transferred to HMP Send.[19]In her unchallenged witness statement RH says that on 28 February 2013 at around 9.20 am she was called back to her cell from work. She was told by the female prison officers there present that she was being targeted for a full body search. She explained that she was menstruating but they insisted on a full body search, first examining the lower half of the body, when the clothing had been removed, and then the upper half, when the clothing had been removed. Her clothes were also searched. Certain areas of her cell were then searched. Nothing was found.[20]In her witness statement RH says that she felt “totally humiliated”. She says that she was scared and has lost confidence in her dealings with staff. She has had thoughts of self-harm. She is concerned about prison gossip and the fact that this search is on her prison record. She says that she was never told at the time that a drug dog had indicated her cell: she herself never saw the drug dog. Had she been asked, she would have consented to the dog entering her cell.[21]In the form F78 subsequently completed with regard to RH, the full body search was recorded as Level 1 – as with BK, it has since been conceded that this was wrong. It was a Level 2 search. The dog was again identified as “Archie”. The search was described as “Targeted”. The reason for search was given as “Alcohol/Drugs”.[22]RH put in a written complaint dated 8 March 2013. She said that she would like an explanation and wanted to be cleared of any wrong-doing on her file. On 13 March 2013 there was a written response to the effect that she had received a targeted search after the drug dog, while carrying out a routine area search, indicated her cell. The answer repeated the error that this had been a Level 1 search. It was also said that prison rules state that all persons may be searched on entry to or within prisons.[23]In due course, after solicitors’ correspondence, the like concessions were made on behalf of the respondent with regard to RH as had been made with regard to BK. The Prison Rules and the Policy on Searches (1). Prison Rule 41[24]The legal right to undertake physical searches of prisoners is contained in Rule 41 of the Prison Rules 1999. That provides as follows:
“Search (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.”
We were also referred to Rules 10, 64 and 71 but they are, I think, of limited relevance for present purposes.[25]The policy reasons for the need for searching – including full body searching – of prisoners and others whilst in prison are obvious: both for the purposes of maintaining discipline and order and for the purposes of protection and safety of staff and prisoners (including, sometimes, the individual prisoner being searched). Nevertheless, and for no less obvious reasons, there are real sensitivities and concerns relating to full body searches: not least in the context of women prisoners and especially when, as has been recognised, a significant proportion of women prisoners may previously have experienced abuse (sexual, physical or psychological) or other emotional disturbance giving rise to particular concerns as to vulnerability. (2). The Corston Report[26]Until 2007 female prisoners – as were male prisoners - were liable to be subjected to routine, non-targeted, strip-searching. However concerns with regard to female prisoners generally had caused the Secretary of State to request a review: and that review extended to the strip-searching of female prisoners.[27]An immensely thorough review of the position of women prisoners in the justice system was duly carried out by Baroness Corston. Her report (“the Corston Report”) constituted, as it states:
“A review of women with particular vulnerabilities in the Criminal Justice System.”
It was published in March 2007.[28]In her foreword, Baroness Corston among other things drew attention to the troubled backgrounds experienced by many women prisoners. She stated her view that for many women prison was both disproportionate and inappropriate. Her Report ranged wide in this context. But for present purposes our attention was drawn to parts of Chapter 3, relating to women in prison and to the prison environment. Baroness Corston dealt specifically with the issue of strip-searching women in prison at paragraphs 3.18 – 3.21 of that chapter. She said this at paragraph 3.18:
“Strip-Searching Women in Prison 3.18 In order to implement the new gender duty, I have recommended in Chapter 2 that the development of gender specific policies and procedures should be given priority by the Prison Service and other criminal justice public bodies. There is one particular aspect of entrenched prison routine that I consider wholly unacceptable for women and which must be radically changed immediately in its present form. This is the regular, repetitive, unnecessary use of strip-searching. Strip-searching is humiliating, degrading and undignified for a woman and a dreadful invasion of privacy. For women who have suffered past abuse, particularly sexual, it is an appalling introduction to prison life and an unwelcome reminder of previous victimisation. It is unpleasant for staff and works against building good relationships with women, especially new receptions. I well understand that drugs and other contraband must be kept out of prison and that there may be a case for routine strip-searching on first reception into prison. But even this procedure is dubious for women given that drugs can be secreted internally, rendering strip-searching ineffective in any event, as routine internal searching is already seen as unacceptable. A group of women in one prison, including some who suffered domestic abuse and some who had not, described strip-searching as making them feel embarrassed, invaded, degraded, uncomfortable, vulnerable, humiliated, ashamed, violated and dirty.”
She went on to describe one particular example (where a female prisoner had described being routinely strip-searched every day on her return to an open prison). She then went to record that it was “very rare indeed” for anything illicit to be found as a result of strip-searching women. At paragraph 3.21 she referred to the availability of detection equipment for drugs. In the course of that paragraph, she said:
“I am sure that for women strip-searching could more appropriately be done randomly; or where individual risk assessments make it necessary; or on intelligence-based information.”
So in that passage, among other things, not only is searching for cause accepted but also a distinction between random searching and routine searching seems to be made. “I am sure that for women strip-searching could more appropriately be done randomly; or where individual risk assessments make it necessary; or on intelligence-based information.”[29]The recommendations at the end of the paragraph included among others, the following: “Strip-searching in women’s prisons should be reduced to the absolute minimum compatible with security; and the Prison Services should pilot ion scan machines in women’s prisons as a replacement for strip-searching women for drugs.” (3). Prison Service Instruction 67/2011[30]What eventuated, in the aftermath of this, was a prison service instruction setting out a revised applicable policy on searching. There have been succeeding policies. That applicable to the present case is PSI 67/2011 (“the PSI”), which had an effective date of 1 November 2011. It also, I observe, had a stated expiry date of 30 October 2015. However, Ms McGahey told us that this PSI has not as yet been replaced and we were led to gather that this PSI continues, by some means not identified to us, to be the policy for the time being applicable. It should be made clear that this policy, entitled “Searching of the Person”, relates both to male and to female prisoners (and also trans sexual prisoners). It covers many areas which are nothing to do with the present case.[31]However, in paragraph 1.3 of the Executive Summary it is stated that one desired outcome is that there be lawful and effective procedures in place for searching prisoners, visitors and staff to ensure that, among many other things, searching “contributed to a safe and decent environment by being proportionate to the risk assessed.” Further, prison Governors are required to ensure that they have local security strategies in place which accord with the instructions set out in the PSI.[32]Section 2 of the PSI contains the Operational Instructions. It differentiates between various types of searches. It emphasises the requirement of a local searching strategy. It acknowledges (in paragraph 2.13) that different searching arrangements will exist across the prison estate. Thus what is mandated or permitted for male prisoners is not the same as for female prisoners: and indeed amongst prisoners what is mandated or permitted varies depending on whether or not, for example, such prisoners are high security prisoners. The various tables illustrate these differences.[33]In the case of women prisoners no full body search is mandated and no routine or random full body searches are permitted; although “rub-down” searches are permitted in some instances. The relevant tables are subject to this note:
“Individual staff may carry out more detailed levels of searches in specific cases on suspicion or receipt of intelligence.”
[34]Paragraph 2.21 – and this provision is at the heart of Ms Mountfield’s argument - states as follows:
“Staff should be aware that searches, especially full searches, can be embarrassing and difficult experiences for prisoners. Staff must, in particular, bear in mind the impact searches may have on prisoners who may be at risk – see PSO 2700, Suicide Prevention and Self-Harm Management”
(emphasis in the original).[35]Under the heading “Women Prisoners” this is provided at paragraph 2.39:
“Women prisoners must not be full-searched as a matter of routine but only on intelligence or reasonable suspicion that an item is being concealed on the person which may be revealed by the search. Full searches must be conducted in accordance with the correct procedures, at Annex B, paragraph 23. The procedure for searching women prisoners is different to that used to search men and women visitors and staff (as set out at Annex B), and consists of two levels. Level 1 involves the removal of the woman’s clothing apart from her underwear; level 2 involves the removal of all of the woman’s clothing including her underwear – Annex B, paragraph 23. Level 2 of the search must only be applied if there is intelligence or suspicion that the woman has concealed an item in her underwear or if illicit items have been discovered about the woman’s person during level 1 of the search.”
[36]Elsewhere, in Appendix A it is made clear that intimate searches (involving intrusion into a bodily orifice) are prohibited. We were also carefully taken through the provisions of Annex B. That stipulates, in very close detail, what is required and permitted to be done in the case of the various types of search. B2 relates to full body searches. It extends over many paragraphs. It among other things makes express reference to the Corston Report (B2 paragraph 21) and summarises some of its observations.[37]At B2 paragraph 23 the differentiation is made, in respect of strip-searching of women prisoners, between Level 1 (removal of clothing apart from underwear) and Level 2 (removal of all clothing including underwear). It is stated that:
“Level 2 of the search may only be applied if there is intelligence or suspicion that the woman has concealed an item in her underwear or if illicit items have been discovered about the woman’s person during Level 1 of the search.”
In the event of a full body search, the officer in charge must conduct the search. It is also stipulated:
“She should explain the need for the search and each step, taking into account any cultural or religious sensitivity.”
[38]There then follows the most detailed and specific instruction as to the form which a Level 2 search is to take. There is also a requirement that there be a signed record as to why a Level 2 search was initiated.[39]In addition, and as required by the PSI itself, HMP Send maintained a Local Instruction on Searching. That too is very detailed. It to a great extent replicates the detail of the PSI. Among other things, however, it also says that:
“A full search will only be considered appropriate: • Where there is intelligence whether by word of mouth or SIR. • Suspicious behaviour by the woman • Sight of what appears to be an object concealed.”
A Principal Officer or equivalent is required by the local instruction to authorise the search in the case of a “target” [as defined]. Elsewhere it is said in the local instruction that attempts to gain the co-operation of prisoners should be made. Vulnerability issues are identified. It is emphasised that “many women find a full search, for example, a very difficult experience”; and that every reasonable effort should be made to treat them with “decency and humanity”. The Grounds of Challenge[40]For the purposes of the present appeal, we are not directly concerned with the actual way in which these particular searches were conducted: and I would say nothing about what may be before the County Court on the damages claims.[41]At the heart of the appellants’ complaint in these proceedings, being the first ground advanced, was the submission that the PSI does not comply with Article 3 (the terms of which are too familiar to require setting out here). It does not comply, so it is said, because where the prisoner is mentally vulnerable, such that a full body search creates a real risk of intense suffering or increased risk of self-harm, the policy gives no instruction or guidance about the decision of whether or not to carry out a full search. Ms Mountfield submitted: i) The policy exposes women to a significant risk of degrading treatment; and/or ii) The policy fails to obviate in advance a proven unacceptable risk or serious possibility of a breach of a woman prisoner’s human rights. Ms Mountfield was particularly critical of paragraph 2.21 of the PSI in this regard. She said that it is entirely deficient. She said that the lack of specificity as to whether to search (and why to search) is to be compared and contrasted with the great specificity thereafter as to how to search. She also complained of the lack of a requirement to give reasons for a full body search.[42]The second ground related to the asserted failure of the PSI to provide a sufficiently clear legal framework adequate to render any strip search compliant with terms “prescribed by law”; and the asserted failure of the PSI, as currently framed, to cause prison officers to take relevant matters into account before engaging in a strip search: thereby giving rise to a real risk of such searches not being justified and not being proportionate.[43]On behalf of the Secretary of State, Ms McGahey submitted that the appellants’ arguments set far too exacting a burden on the Secretary of State for the purposes of Article 3. It was further submitted that the PSI has to be read as a whole, not by focusing on selected sentences found within it: and if the PSI was read as a whole, in a practical and reasonable way, its provisions were entirely sufficient to meet the requirements both of Article 3 and of Article 8.

Divisional Court

[44]A number of witness statements were before the Divisional Court, in addition to those of the appellants. Thus the late Denise Marshall, then Chief Executive of the charity Eaves, stated that Eaves welcomed the Corston Report. She went on to express her own distaste for strip-searching of female prisoners, referred to new detection technology and said that Eaves’ belief was that there can “be few if any appropriate occasions when strip-searching would ever be appropriate or proportionate for women.” Similar views were expressed in the witness statements of Joyce Kallevik, Chief Executive of Wish Charity, and Maureen Mansfield, an employee of Women in Prison Limited. The latter stated that strip-searching can be a “hugely traumatic personal violation” for women who have been in damaging relationships; and that dignity and respect for women prisoners must be upheld at all times.[45]A lengthy witness statement of Emma Prince, NOMS Policy Lead on Searching in Prisons, was put in on behalf of the Secretary of State. That gave a most detailed exposition of the entire background and provided a commentary on the PSI.

Judgment of the Divisional Court

[46]The Divisional Court, in a judgment delivered by Collins J, gave short shrift to the appellants’ arguments.[47]It identified (at paragraphs 23 to 25 of the judgment) a number of respects in which the PSI had not been followed in the searches of the appellants. But as to the asserted deficiencies in the PSI itself, the court rejected the complaints raised. It agreed that reasons needed to be given. But it held that the PSI, fairly read, did make the giving of reasons a requirement; and the instruction was “not so deficient in the respects submitted by Ms Mountfield as to be unlawful.” As to the complaint that the PSI did not draw to the attention of prison officers the need to assess vulnerability before deciding whether a search should take place, the Divisional Court held that the PSI required prison officers to consider the particular circumstances of an individual prisoner; that the PSI made reference to suicide and mental health problems; and that on a “sensible reading” of the PSI it was sufficiently spelled out that such matters should be considered in advance of a full body search.[48]The Divisional Court thus rejected the attack on the policy. It held that there was nothing in the PSI which could lead to a real risk that a breach of Article 3 might occur, provided the searches were carried out in conformity with the PSI. It further held that provided searches were carried out in conformity with the PSI there was no possible breach of Article 8. The failures in the present case were to be treated as an “aberration” – whether through lack of training or otherwise.

Disposition

[49]Having considered the papers, and the written and oral arguments advanced, I think that the Divisional Court reached the right conclusions and essentially for the right reasons.[50]I had some initial concerns that this court was being asked to deal with a point which had, for these appellants, become academic. Their claims for damages have been conceded (and have been transferred to the County Court) and the searches have been declared to be unlawful. However, the Divisional Court had also dealt substantively with the challenge to the lawfulness of the policy itself: and, moreover, as Burnett LJ observed in granting leave, the issue stands to affect other women prisoners (at all events while this particular PSI remains in its current form). In the circumstances of this particular case, it would not be very helpful to decline to adjudicate on the matter. (1). Article 3[51]Some initial points can be made: iii) First, the provisions of the PSI – as published policy – are to be read in a sensible and practical way. A number of authorities in this respect were cited to us. But I do not need to set them out here. iv) Second, the provisions of the PSI are to be read as a whole. v) Third, the bar is set relatively high for a challenge to a policy based on Article 3 grounds. vi) Fourth, there can be no doubt that strip-searching is capable in itself of engaging Article 3 (and Article 8). Certainly the application of strip searches, particularly to those who are not prisoners or reasonably suspected of having committed a criminal offence, requires rigorous adherence to prescribed procedures and the need to protect human dignity. Correspondingly, a search carried out in an appropriate manner and for a legitimate purpose may be compatible with Article 3 and Article 8: see Wainwright v United Kingdom [2009] 44 EHRR 40, at paragraphs 41 - 43. vii) Fifth, and reflecting the foregoing, the prison context is of central importance in this case. That context gives rise to questions of policy, and protection and safety and security issues, on which the assessment of those entrusted with formulating such a policy should be accorded a measure of respect.[52]In her initial skeleton argument Ms Mountfield had suggested that, in the context of the potential application of Article 3 to vulnerable women prisoners in connection with strip-searching, the State had been under a duty to make arrangements designed to “minimise to the maximum extent possible” the risk of harm amounting to a breach of Article 3. The authority relied on – Makaratzis v Greece (2005) 41 EHRR 49 – lent only limited support, at best, to so generalised a proposition. In any event such a proposition cannot be sustained in the light of the specific conclusion on the point by the Court of Appeal in R (FI) v Secretary of State for the Home Department [2014] HRLR 30, [2014] EWCA Civ 1272: see in particular at paragraphs 41 and 42 of the judgment of Richards LJ (with whom Christopher Clarke LJ and the Chancellor agreed).[53]Ms Mountfield accepted that to be so in her argument before us. She also rightly accepted the distinction properly to be drawn between the compliance with Article 3 of an individual act or operation on the one hand and the compliance with Article 3 of the relevant legal or administrative framework on the other hand. With regard to the latter, as decided in R (FI), the obligation of the state is to provide a framework with adequate and effective safeguards against arbitrariness and abuse of force: no less but no more.[54]At all events, it was common ground before us that the approach to be adopted in the present case corresponded with that succinctly stated by Lord Bingham in the case of R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, [2005] UKHL 58. At paragraph 29 of his speech he said this:
“The trust must not adopt a policy which exposes patients to a significant risk of treatment prohibited by article 3”
At paragraph 81 of his speech, Lord Hope referred to the risk required to be considered, for the purpose of the Article 3 argument, being one of “a serious risk of ill-treatment of the required level of severity”. So the question here is: did the policy contained in the PSI expose female prisoners to a significant risk of treatment prohibited by Article 3?[55]In my view, once that is accepted as the question the answer is readily forth- coming.[56]Aspects of the evidence filed in support of these claims, as I have said, included expressions of the view that strip-searching of women prisoners could never, and should never, be justified. Ms Mountfield, however, wisely and rightly did not pursue that particular proposition. She accepted that strip-searching of women prisoners in principle can be lawful. That being so, it is then a matter of policy to determine the extent to which, as a framework, there may be strip-searches of women prisoners. This subject – along with many other subjects relating to female prisoners – was of course addressed by the Corston Report. But even then it was a matter for the Government as to whether (and, if so, as to the extent which) the recommendations in the Corston Report were to be accepted. There was a balancing exercise to be undertaken. In the event, the reference in paragraph 21 of Annex B to the PSI, and its provisions generally with regard to full body searching of women prisoners, shows that the Government were intending broadly to act upon the recommendations of the Corston Report in this regard. It would, in truth, be a particular irony that, in seeking to give effect to the main thrust of these humane recommendations by Baroness Corston, the Secretary of State, by introducing the PSI, has found himself in breach of Article 3.[57]It is true that, as stated in Van der Ven v Netherlands [2004] 38 EHRR 46 at paragraph 48 of the judgment, the absence of any purpose to humiliate or debase cannot conclusively rule out a violation of Article 3. But there remains a real oddity, to my mind, in an argument which has the consequence that a policy designed to improve the position of women prisoners as to strip-searching has had the result that the Secretary of State has acted in breach of Article 3.[58]Be that as it may, I cannot accept that such a result has arisen. In my view, read as a whole, the PSI provides a framework which is amply compliant with Article 3: and, indeed, does so in a way designed to give effect to the recommendations in the Corston Report.[59]As Ms McGahey pointed out, paragraphs 3.18 to 3.21 of the Corston Report had been focusing on and criticising routine strip searching of female prisoners (other than on first reception into prison): the more so when experience indicated that results, in terms actually of finding illicit items, were nebulous. The Corston Report was not directed at excluding strip-searches altogether, however.[60]The PSI gives effect to that. Routine searching of female prisoners is abrogated. Further, if there is to be full body searching in any particular case it has to be for a reason: it cannot be arbitrary. Thus it is stated at the outset of the PSI that one aim is to ensure that searching contributes to a “safe and decent” environment by being “proportionate to the risk assessed”. It is made clear, and is later repeated, that women prisoners must not be strip-searched routinely but only on intelligence or reasonable suspicion. Further, there are the most detailed requirements as to how any such body search is to be conducted. These are designed to minimise, as far as possible, the distress and embarrassment caused: in what is, on any view, likely to be a distressing and embarrassing situation.[61]Ms Mountfield focused much of her attack on paragraph 2.21 of the PSI. She said that it is wholly insufficient to say “staff must, in particular, bear in mind the impact searches may have on prisoners who may be at risk”: with reference thereafter to the instruction on suicide prevention and self-harm management (which, she said, did not itself relate to strip-searching). She said that insufficient emphasis was given to the need to consider the particular vulnerability of the woman prisoner proposed to be searched. In my view, however, that argument involved both an unreasonably narrow reading of those words and a downplaying of many of the other relevant passages in the PSI. It is, to my mind, plain that the framework contained in this PSI requires that prison officers give consideration as to whether there should be a full body search in any case before undertaking such a search. Indeed they could not even contemplate such a procedure in the absence of intelligence or reasonable suspicion that there may be a concealed item.[62]Some aspects of Ms Mountfield’s argument impliedly tended towards a proposition that women prisoners with known mental health issues could never properly be the subject of a full body search, given the asserted risk of intense suffering or increased risk of self harm. But not only did Ms Mountfield disclaim such an argument but also, as Ms McGahey pointed out, there may indeed be occasions when highly vulnerable women prisoners, with significant mental health issues, may, for example, need to be strip searched for their own safety: notwithstanding foreseeable consequential psychological impact on such prisoners.[63]In my view, when the PSI is read as a whole, it makes sufficiently clear that prison officers are first to consider the need for, and impact of, a full body search before embarking on one. The contrary argument is not based on a practical or realistic interpretation of the PSI. Indeed in many ways, with all respect, the contrary argument strays into suggestions of how the policy might have been better framed or how the policy might have been differently balanced (for example, the suggestion of more use of ion detecting or other such equipment with regard to women prisoners). But that is not the right exercise to be undertaken for the purposes of the Article 3 argument.[64]This conclusion is, I think, also reinforced by the lack of any evidence of systemic failing in or breaches of what Ms Mountfield advances as necessary requirements of an Article 3 compliant policy.[65]In this regard, we were told that the Department maintains no centralised records relating to full body searches. The frequency of, and circumstances in which, full body searches of women prisoners are undertaken is not known. Ms Mountfield, however, drew our attention to a report by NACRO, made in 2011, appended to the Equality Impact Assessment made in this case for the purposes of the PSI. The survey undertaken in that report extended to consultation with 110 prisoners held in 6 prisons (including one young offender institution). Of the participants, just 20 were women, all held in one prison (not HMP Send). The consultation, I add, was on searching in prisons generally. It was not confined to full body searching.[66]Recorded answers included statements that searching was a sensitive subject; that prisoners were seldom aware of the underpinning policy (which lack of awareness was of itself described as “disempowering”); and that the experience of being searched would not be negative if handled properly and if reasons for the search were given. A particular complaint was lack of communication and transparency and that a search was “just done” to prisoners.[67]In my view, however, for the purposes of the present case no safe conclusions can be drawn from such a limited sample, in the context of full-body searches of women prisoners. Nor can any such conclusion be drawn from various statements within the Corston Report. That deals in this respect principally with routine, not targeted, searches (and the Corston Report does not suggest that targeted searches are unjustified). Overall, no systemic arbitrariness has been shown on the basis of the limited materials which Ms Mountfield was able to advance. No pattern can be identified as having emerged. Moreover, it must not be overlooked that the PSI must, by its own terms, be read in conjunction with the local instruction which each prison is also required to set as being appropriate for that particular prison. I can overall, see no sufficient basis for departing from the conclusion of the Divisional Court that what happened here was an aberration. There thus is, in my view, no sufficient evidence of systemic or significant failings indicative of a policy which does not comply with Article 3 or which does not operate fairly in the generality of cases involving targeted strip-searching of female prisoners. Indeed it is, to my mind, noteworthy that neither appellant, in their years in custody, had after their initial reception been the subject of any strip search prior to 28 February 2013. (2). Article 8[68]For corresponding reasons, the argument under Article 8 – which, of course, necessarily brings into play issues of proportionality – also, in my view, fails.[69]However, under this head Ms Mounfield advanced two further specific points, in saying that the PSI infringed Article 8.[70]The first point was that the PSI, so it was said, lacked a sufficiently clear requirement of the need to explain to the prisoner the reasons for the search. In my view, there is nothing in that. The position is addressed in Annex B. The prison officer in charge of the search is required to explain the “need” for the search. Ms Mountfield objected that that is not the same as a requirement to give reasons. In my view that is unreal. The PSI is not to be parsed as though it were some abstruse trust deed. Read sensibly, it plainly connotes that the prisoner must be told why the search is being carried out. That is what the Divisional Court held; and I agree with the Divisional Court.[71]The second point was that the PSI lacks sufficient clarity as to whether the suspicion required to justify a full body search must be reasonable suspicion. This submission, in my view, fails for the like reasons. Naturally and sensibly read, the PSI plainly does require reasonable suspicion. That is in fact made explicit in the first sentence of paragraph 2.39. Ms Mountfield observed that, in the final sentence of that paragraph, and indeed elsewhere, it is said that a Level 2 search may only be applied if there is “intelligence or suspicion” of concealment: the word “reasonable” does not, in such passages, qualify the word “suspicion”. In my view, that involves both an unreal interpretation and a failure to read the PSI as a whole. Reasonableness of suspicion is plainly implicit where it is not made explicit. Ms Mountfield’s approach is, as Ms McGahey bluntly put it and I agree, an attempt to impose “artificially high drafting standards” on a policy contained in a prison instruction.[72]In my view this objection also applies to the appellants’ further complaint (reflecting the earlier arguments) that the PSI was insufficiently clear: in that it failed to provide, so it is asserted, a sufficient “structure” for the identification of matters to be taken into account before deciding whether to undertake a full body search; and failed to include adequate safeguards designed to minimise disproportionate applications of the PSI. Here too, in my view, the arguments ask altogether too much of a prison instruction in this context and are unduly prescriptive. The reality is that the circumstances in which such strip searching may take place, under the PSI, are restricted. They are designed to preclude an arbitrary approach to strip-searching. There can be no valid objection on grounds of lack of clarity or transparency.[73]Accordingly, whether, for the purposes of this argument under Article 8, one asks whether this policy exposes female prisoners to a significant risk of an unlawful outcome or whether, as indicated as the appropriate approach by the Court of Appeal in R (Tabbakh) v Staffordshire Probation Trust [2014] 1 WLR 4620, [2014] EWCA Civ 327, one asks whether the policy is “inherently unfair”, the answer is, either way, the same: No.[74]Ultimately, and rejecting Ms Mountfield’s submissions, I am of the view that these provisions of the PSI are such as to satisfy all realistic requirements of clarity, justification and proportionality.

Conclusion

[75]While I conclude that this policy contained in the PSI is lawful, I would revert to the point that, on its face, the policy was stated to expire in October 2015. Presumably the Secretary of State is keeping it under review. That the PSI is, as I would hold, lawful does not mean that it might not, with advantage, be reviewed as to its drafting and as to its requirements. But, that said, whether any changes are considered desirable is a matter for the Secretary of State.[76]In the result, I consider that the Divisional Court was quite right. I would dismiss this appeal.[77]I agree.[78]I also agree.

Cited in 5 later judgments