Christopher Cunningham, R (on the application of) v Secretary of State for Justice [2026] EWHC 2222 (Admin)

[2026] EWHC 2222 (Admin)Case No AC-2025-LDS-000137
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
Venue Leeds Combined Court Centre,, 1 Oxford Row, Leeds LS1 3BGDate 27/08/2026
Before
HH JUDGE DAVIS-WHITE KC(SITTING AS A JUDGE OF THE KING'S BENCH DIVISION)
Between
CHRISTOPHER CUNNINGHAMClaimantSECRETARY OF STATE FOR JUSTICEDefendant
Darryl Hutcheon (instructed by JHB Law Ltd t/a Lawstop) for ClaimantVincent Scully (instructed by Government Legal Department) for DefendantHearing Hearing date: 22 July 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 27 August 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................HH JUDGE DAVIS-WHITE KC (SITTING AS A JUDGE OF THE CHANCERY DIVISION)

HH Judge Davis-White KC :

[1]This case concerns the legality of policies regarding the use of X-ray body scanners (“XRBS”) in the scanning of prisoners adopted by two prisons, namely HMP Wakefield and HMP Berwyn.[2]On a transfer on 27 June 2025 between HMP Wakefield and HMP Berwyn, the Claimant was scanned by XRBS twice before leaving HMP Wakefield (the first scan was inconclusive) and once on arrival at HMP Berwyn.[3]In brief, the Claimant asserts that these scans were unlawful on the following grounds:(1) Each of the respective prison policies that had been adopted, and pursuant to which he had been scanned, was unlawful because:- (a) they are inconsistent with, or authorise conduct which breaches, Part 7A of the Justification of Practices Involving Ionising Radiation Regulations 2004 (“the 2004 Regulations”); (b) they are inconsistent with the published national policy for XRBS which was, therefore, unlawfully, not followed; (c) they are in breach of, or authorise conduct which breaches, the rights of the Claimant (and other prisoners) under Article 8 of the European Convention on Human Rights.(2) In the light of (1) and/or on the facts, the individual scans conducted on the Claimant on 27 June 2025 were unlawful.[4]Ground 1 of the grounds for judicial review encompasses the point in paragraph (1)(b) above. Ground 2 of the grounds for judicial review encompasses the points in paragraph (1)(a) and (c) above. Ground 3 of the grounds for judicial review encompasses the point at paragraph (2) above. I have re-ordered the analysis because it seems to me more logical to start with the legislative position and then to work down to and through the policies adopted to give effect to or supplement the legislative position.[5]This is the hearing of a claim for judicial review commenced by claim form dated 23 June 2025 and issued on 03 July 2025. Following permission to rely on amended grounds, permission to proceed on all amended grounds was granted by Mrs Justice Hill by Order dated 07 November 2025. The delay in this claim being heard has been a result of a number of extensions of time granted to the parties to comply with the procedural timetable that Hill J laid down.[6]The Claimant was represented before me by Mr Darryl Hutcheon of Counsel. The Secretary of State was represented by Mr Vincent Scully of Counsel. I am grateful to both Counsel for their helpful written and oral submissions and their focussed approach to the issues in this case.[7]I understand that there are other challenges by way of judicial review proceedings to the use of XRBS on prisoners, however none of those cases have yet resulted in a judgment of the court on the merits and I was not, and did not need to be, told the details of the challenges in the cases concerned.

The Claimant

[8]The Claimant The Claimant is serving a lengthy prison sentence for rape, having been convicted and sentenced in 2017. He has been kept within the prison estate since 16 July 2016, presumably when remanded in custody within the relevant criminal proceedings. During his time in the prison estate the Claimant has been held in a number of prisons.[9]Whilst detained in prison, following sentence, the Claimant was initially categorised as Category B. On 22 February 2025 he was re-categorised into Category C. The Defendant says that the Claimant would have known from his re-categorisation that he would be likely to be moved to a Category C Training or Category C Resettlement prison. In any event, the Claimant accepts that, following re-categorisation, he knew in general terms that he would at some stage be transferred to a lower-security Category C prison and that he received a general indication that he had been accepted at HMP Berwyn and would be transferred at some stage.[10]Following re-categorisation, on 27 June 2025, he was moved from HMP Wakefield to HMP Berwyn, as mentioned above.[11]There are a number of occasions prior to his move from HMP Wakefield to HMP Berwyn that the Claimant was scanned and the scan was found to be positive: (1) On 14 June 2021 on arrival at HMP Wymott he was:
“subject to a body scan for suspicious purposes, It was believed that a foreign object was secreted inside him.”
He was reported for breach of Prison Rules 51(23) which allegation was found proved by a Governor on 18 August 2021. (2) Between 09-10 February 2024, whilst at HMP Rye Hill, he had three positive scans. By 12 February 2024, the scans were negative, indicating removal and disposal of whatever had been secreted inside his body, (3) On transfer to HMP Wakefield on 26 April 2024, he was scanned on arrival. The first scan showed a suspicious item but a re-scan the same day was clear.[12]Before being moved from HMP Wakefield on 27 June 2025, the Claimant was given some 45 minutes’ advance notice. The Defendant says that this was ample time to permit arrangements to be made for secretion and conveyance of illicit items.[13]The initial scan at HMP Wakefield was inconclusive. The second scan was negative. In between the two scans, and as the first scan was inconclusive, the Clamant was required to use the toilet under the constant supervision of reception staff, which left him feeling “both degraded and humiliated”.[14]The journey from HMP Wakefield to HMP Berwyn took about five hours with a stop at HMP Leeds. As a category C prisoner, the Claimant would have been transported by a private contractor (Serco or GeoAmey) rather than by HMPPS staff.[15]On arrival at HMP Berwyn, the Claimant was subject to a further XRBS.[16]The Claimant made no objection to any of the three scans conducted on 27 June 2025.[17]I understand that later, on 11 March 2026, the Claimant was re-categorised into Category D and moved from HMP Berwyn to an open prison for Category D prisoners at HMP Haverigg, where he currently remains.

Categorisation of prisoners and of prisons

[18]Categorisation of prisoners and of prisons Categorisation of prisoners is carried out in accordance with rule 7 of the Prison Rules 1999 and any directions from time to time of the Secretary of State. Security categorisation is made, in the case of adult males, between categories A to D (inclusive). In broad terms (and subject to exceptions) the classification is made “having regard to the prisoner’s age, temperament, and record and with a view to maintaining good order and facilitating training and, in the case of convicted prisoners, of furthering the purpose of their training and treatment.” As I understand it, in practice among the many considerations taken into account (as well as those mentioned in Prison Rule 7) are the risk of escape; harm to the public, if the prisoner were to escape; and threat to the control and stability of a prison posed by the prisoner. This is expressed in paragraph 5.1.1. of the “Security Categorisation Policy Framework” (re-issued 28 April 2025) as follows:
“5.1.1. Prisoners are categorised according to the risk they present to security, safety and public protection, and must be held in a prison providing levels of security appropriate to managing identified risks.”
[19]As explained by Mr Lee Denton, operations manager at HMP Wakefield, in his witness statement in these proceedings, prisons can be differentiated in a number of ways, including by function (but individual prisons may carry out more than one function).[20]There is first a division of prisons between “closed” and “open” prisons as set out in HMPPS Security Categorisation Policy Framework as follows:
“Closed prisons have a secure perimeter and a range of internal security measures. For adult men, they are sub-divided into: Category C prisons, providing a level of physical and procedural security capable of safely and securely managing the majority of men; and Category B prisons, providing additional physical and procedural security suitable for managing those identified as presenting a greater level of risk. Further sub-divisions and categories within the closed estate are set out below. […] Open prisons have minimal perimeter and physical security features and are for those who are specifically assessed as suitable for conditions of low security.”
[21]As regards functions, Mr Denton identified the following, pointing out that any one prison may combine two or more of the functions identified:(1) Reception prisons (or ‘Local prisons’): These prisons mainly take prisoners sent from local courts when they have been placed on remand awaiting trial or who have been convicted and are awaiting sentence.(2) Training prisons: These prisons are largely designed to accommodate Category B and, in some cases, Category C, offenders. There are both Category B Training prisons (standard), and a small number of Category B Training prisons that are also Dispersal prisons (see explanation of Dispersal prisons below). Prisoners in Training prisons are expected to work and engage in training.(3) Resettlement prisons: These prisons are designed to help prepare prisoners who are Category C or Category D for release. Some Resettlement prisons are open prisons, where prisoners may leave to go to work or training, or to visit their family.(4) Dispersal prisons: These are certain Category B Training prisons, which have been designated to hold the most difficult and dangerous prisoners in England and Wales, including those assessed as Category A and Category B. Dispersal prisons are intended to ensure the most dangerous prisoners are not concentrated in a single establishment, thereby reducing the risk involved in holding them. There are currently five Dispersal prisons in England. These are HMP Whitemoor, HMP Frankland, HMP Full Sutton, HMP Long Lartin, and HMP Wakefield. (HMP Belmarsh and HMP Manchester can hold Category A prisoners but are not Dispersal Prisons. Rather, they contain specialist units (effectively functioning as miniature prisons within prisons, with enhanced security) that are able to hold Category A prisoners.)[22]Prisons can also be classified by way of alphabetical security category. As also explained by Mr Denton:(1) Category B Training – Dispersal: These prisons house male prisoners who, if they were to escape, pose the most threat to the public, the police or national security. These prisoners may have been categorised as either Category A or Category B. Category B Training - Dispersal prisons have greater level of physical and procedural security than standard Category B prisons. Dispersal prisons are often referred to as “Category A prisons” due to their ability to house Category A prisoners.(2) Category B Training (standard) and Category B Local: These prisons are either Training or Local prisons. Category B Training prisons (standard) hold long-term and high-security Category B prisoners whose risk can be appropriately managed outside of a Category B Training - Dispersal prison.(3) Category C Training and Category C Resettlement: These are standard closed Prisons. They provide prisoners with the opportunity to develop their own skills so they can find work and resettle into the community on release.(4) Category D prisons: These are open prisons, with minimal security. They allow eligible prisoners to spend most of their day away from the prison on licence to carry out work, education or for other resettlement purposes. Open prisons only house prisoners who have been risk-assessed and deemed suitable for open conditions.[23]Wakefield prison is a Category B Training-Dispersal prison housing mainly Category A and Category B prisoners. As Mr Denton puts it:
“In other words, HMP Wakefield houses a prison population including prisoners who are considered among the most dangerous, and for whom escape must be made impossible.”
[24]The position regarding HMP Berwyn is dealt with by Mr Alex Yarnall. He is the head of Security and Intelligence at that prison. “8. HMP Berwyn is the largest prison in England and Wales. It is a Category C men’s training and resettlement prison and can house up to 2000 prisoners. The current population [January 2026] is around 1,900 prisoners. 9. Category C resettlement or training prisons typically house Category C or Category D prisoners (although in some cases, small numbers of Category B prisoners may also be detained at a Category C resettlement or training prison due to pressures on the larger prison estate). Category C or D prisoners typically have reasonably short periods of time left to serve, and are preparing to reintegrate into society. To assist in a successful re-integration, Category C prisons (including HMP Berwyn) facilitate programmes to assist prisoners in gaining transferrable skills ahead of a pending return to society, for example vocational training and educational courses. As a result, Category C have a reasonably transient population, compared to Dispersal prisons. HMP Berwyn also houses some remand prisoners, who are then often transferred to other establishments following sentencing. For example, over the course of 2025 approximately 5000 prisoners were detained at some point at HMP Berwyn. The frequent turnover of prisoners at HMP Berwyn increases opportunities for illegal conveyance into the establishment.” The Background to the use of XRBS in prisons and the regulatory regime (1). Illicit Materials in Prisons

The Background to the use of XRBS in prisons and the regulatory regime

[25]Sections 40B and 40C of the Prison Act 1952 (as substituted for s40 by the Offender Management Act 2007) in broad terms make it an offence, without authorisation, to bring, convey or throw into or out of a prison certain items and also makes it an offence to carry out certain related acts (such as causing another to do so or giving such items to a prisoner knowing them to be a prisoner or leaving such an item intending it to come into the possession of a prisoner).[26]The items in question are identified by reference to three lists set out in s40A. For present purposes List A includes (among other items) controlled drugs and offensive weapons (see s40A(2)(a), (d)); List B includes (among other items) a mobile telephone and a component part of a device of that description or an article designed or adapted for use with a device of that description (see s40A(3)(b), (5)).[27]The seriousness of the offences is marked by the penalty which is, in the case of a List A item offence, a term of imprisonment for up to 10 years or to a fine (or both) (see ss40B(6)) and in the case of a List B item offence, on conviction on indictment, up to two years imprisonment and/or a fine and on summary conviction, to a term of imprisonment not exceeding the general limit in the magistrates court and/or a fine not exceeding the statutory maximum.[28]Furthermore, under the Prison Rules 1999 (made under s47 of the Prisons Act 1952) there is a widespread requirement/power to search prisoners. A prisoner is guilty of an offence against discipline if he has in his possession any unauthorised article or he disobeys any lawful order. Rules 41 and (part of rule) 51 provide as follows: “Search 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. ….. 51. A prisoner is guilty of an offence against discipline if he— …. (12) has in his possession— (a) any unauthorised article, or (b) a greater quantity of any article than he is authorised to have; (13) sells or delivers to any person any unauthorised article; … (22) disobeys any lawful order;” (2) Searches in general in Men’s prisons and the Searching Policy Framework (“SPF”)[29]The use of searches (in general) is the subject of a further policy document called “Searching Policy Framework” (the “SPF”). This was implemented on 03 January 2023 and the latest version relevant to the searches in this case was re-issued on 08 April 2025 (it has since been re-issued on 31 March 2026). This document is referred to within the policy document setting out policy on XRBS, as I shall explain later in this judgment. The provisions below are taken from the 08 April 2025 re-issue.[30]Part 4 of the SPF is compulsory. Part 6 of the SPF provides guidance. “Mandatory Actions: … the requirements section of this policy framework, …contains all mandatory actions. .. Section 6 of the policy framework contains guidance to implement the mandatory requirements set out in section 4 of this policy framework. Whilst it will not be mandatory to follow what is set out in this guidance, clear reasons to depart from the guidance should be documented locally.”[31]Among the immediately relevant provisions are the following.[32]First there are some definitions:
“LSS: The Local Security Strategy. “The LSS outlines procedures and processes for all aspects of security within a prison. It should align to the NSF in terms of its layout and legislative content however it is specific to the identified risks within the establishment in addition to maintaining overall physical and procedural security.”
LSP: Local Searching Policy:
“These are policies specific to arrangements and procedures for that establishment e.g. searching,…”
[33]Turning then to the body of the SPF: “1. Purpose1.1 The searching policy framework supports prisons by providing the searching requirements and guidance needed to maintain high levels of security and maintain a secure and stable environment for staff and prisoners. It applies to all public and contracted out prisons, and all parts of all categories of prisons and young offender institutions.1.2 Searching is a key procedure in preventing escape/abscond and conveyance of illicit items [defined as items for which it is a criminal offence to have in possession and could lead to prosecution]… … 1.6 Searching levels include full search (removal of clothing and visual observations), rub down searches (removal of outer clothing only, contact search over clothing and visual observations) and the use of technical aids to assist searching procedures (metal detectors and scanners). In all incidents of searching, staff should model the principles of procedural justice by:• Explaining what is happening and why, and giving people the chance to talk confidentially.• Being clear that searching is about keeping people safe.• Empathising and being understanding about how it feels to be searched.• Making a point of taking good care of people’s possessions and leaving rooms tidy. 2. Evidence2.1 The use of XRBS in HMPPS is responsible for protecting prisoners, those working in or visiting prisons, as well as the public, by taking steps to prevent the importation and supply of drugs and other illicit items into prisons.2.2 There is widespread understanding that some prisoners attempt to intentionally undermine HMPPS’s security searching methodologies by hiding unauthorised and illicit items on their bodies and in their clothing. National media outlets often report that dangerous and illegal drugs and other items are conveyed into prisons using this method of concealment. Evidence shows that illicit items are routinely conveyed into establishments. Searching of the person, cells, vehicles, external areas and internal buildings/common areas alongside the use of technical aids has been identified as effective in both preventing and identifying these routes of conveyance. In the 12 months to March 2021, searching conducted in the prison estate resulted in 20,295 drug finds, 8,793 mobile phone finds, 3,991 SIM card finds and 7,178 weapon finds2. This shows how vital it is that searching is carried out safely and effectively, to reduce the number of illicit items conveyed into the estate and create a safer and more secure environment for rehabilitation.2.3 HMPPS is responsible for protecting the public from escapes and absconds and the use of effective searching methods both disrupts and deters attempts to escape custody by identifying contraband that may assist any such attempts.2.4 A lack of searching can lead to an increase in the conveyance of illicit items into the prison estate. This can create a trade of illicit items, where vulnerable people are coerced into committing additional criminality in prison due to debt, or the failure to pay often leads to physical violence. This violence has a toxic and corrosive impact on institutional culture and negatively impacts on prisoners’ perception of safety. It is therefore imperative that the flow of illicit items into prisons is reduced through effective searching of people, cells, areas and vehicles. ….[4]REQUIREMENTS4.1 RISK ASSESSMENT 4.1.1 The Local Security Strategy (LSS) will need to include a process that identifies and outlines the searching requirements for the establishment via an assessment of risk. This assessment must be undertaken/reviewed annually as a minimum and in addition, whenever risks are perceived to have changed significantly. Levels of all searches must be agreed by the Governor and Prison Group Director (PGD), to form part of Local Searching Policies (LSP). See guidance for further information on the risk assessment process.4.2 LOCAL SEARCHING POLICY4.2.1 Every establishment must have a process whereby the contents of the LSS in relation to searching are made available to staff, visitors and prisoners. This is usually undertaken as part of an establishment’s Local Searching Policy (LSP), which is documented and agreed between the Governor and PGD. Establishments must ensure that their LSP is effective and addresses current threats.4.2.2 LSPs must be based upon a realistic appreciation of what is necessary and what is possible and documented within the LSS. See guidance for instructions on completing the LSP.4.2.3 The LSP must be made available to staff, visitors, and prisoners in respect of how it applies to them. Guidance on searching procedures must be displayed prominently including within visitors’ centres and all searching areas within visits. Establishments must consider effective communication of the LSP for all individuals who are non-English speaking, vision impaired and those with learning difficulties/disabilities and individuals who are neuro diverse. See guidance for further information. …. 4.7 REQUIREMENTS FOR SEARCHING OF PRISONERS IN THE MEN’S ESTATE … 4.7.2 Prisoners in the men’s estate may be rub down searched by male or female staff but must only be full searched by male prison officers. See guidance for transgender considerations. In addition, no prisoner will be full searched in the sight of another prisoner, a member of the opposite sex or in the sight of other staff not undertaking the search. … 4.7.4 Reasons for the search must be explained to the prisoner before it begins. 4.9 INTELLIGENCE LED SEARCHING 4.9.1 Staff must have intelligence or reasonable grounds for suspecting that a person is concealing an item before conducting an intelligence led search. Whether there are reasonable grounds must be determined based on the particular circumstances in each case and is in two parts: i. Firstly, the officer must have formed a genuine suspicion in their own mind that they will find an unauthorised article and ii. Secondly, the suspicion that the object will be found must be reasonable. This means that there must be an objective basis for that suspicion based on facts, information and/or intelligence which are relevant to the likelihood that the object in question will be found so that a reasonable person would be entitled to reach the same conclusion based on the same facts and information and/or intelligence. …. 4.9.7 As set out in 4.9.1, staff must have intelligence or reasonable grounds for suspecting that a person is concealing an item before conducting an intelligence led search. There may be occasions where it is necessary to search a group of prisoners following intelligence of weapons or other risks to safety and security. In these situations, each individual search must be justified according to the level of search applied. It would not be in line with policy to carry out blanket full searches (and/or searches involving a squat) of large numbers of prisoners without intelligence justifying the need to search each individual prisoner. …. OTHER CONSIDERATIONS 4.32 TECHNICAL AIDS AND SEARCHING4.32.1 Staff must be fully aware of how to use technical aids before operating them. All x-ray operatives must be trained. Further information on technical aids and their use can be found in the guidance.4.32.2 An x-ray body scan must not be used as an alternative to a full or rub down search and does not replace the requirements set out in this policy framework. Governors must ensure the use of x-ray body scanners in the adult male estate must be in line with the legislation and requirements set out in Justification of Practices Involving Ionising Radiation Regulations 2004 (as amended) and must not be used in replace of a full search. The procedures detailed in the Use-of-X-Ray-Body-Scanners-Adult-Male-Prisons-policy framework must be adhered to ensuring that processes and arrangements for their use are reflected in the LSS[6]GUIDANCE This section includes information to guide prisons in implementing the mandatory requirements as set out in Section 4 of this policy framework. The guidance includes effective practice, operating guidance and templates which prison staff should follow to ensure the correct process is adhered to and the mandatory requirements are achieved. Whilst it will not be mandatory to follow what is set out in this guidance, failure to do so could be challenged and so clear reasons to depart from the guidance should be documented locally. Supporting documents referenced within this policy guidance are published separately and will be subject to ongoing review …. 6.12. TECHNICAL AIDS 6.12.1 The following technical aids can be used to assist with searching. The annexes provide further information and guidance on their use.• Annex 10 – X-ray body scanner (Used for scanning adult male prisoners only to identify internally concealed/secreted items – usually found in reception. Must not be used on staff, visitors, or prisoners with female reproductive organs. Must only be used on an intelligence led basis.)[34]The SPF also contains sections headed “Considerations for Religious and Philosophical Beliefs”, covering, among other things, religious and cultural objections to searches (see paragraph 4.34 and its sub-paragraphs, though these are primarily directed at full body searches or rub-down searches or property searches).[35]Part 6 of the SPF sets out guidance. Included within this guidance is a section dealing with susceptibility to undertaking conveyances of illicit items: “6.5.3. Staff, prisoners and visitors may be susceptible to undertaking conveyance of illicit items which can be discovered during a search. Certain factors may make an individual more vulnerable and likely to be exposed to involvement in this process. There are many factors that may make people vulnerable and in addition to this, vulnerability can be fluid. This means that individuals who may not be susceptible one day could find themselves vulnerable due to actions or events that have occurred. Several factors may make individual vulnerable to holding illicit items or being involved in the conveyance of these, some of these are listed below (this list is not exhaustive):• Individuals with disabilities particularly those who are neurodivergent.• Individuals with mental health conditions.• Individuals with substance misuse issues.• First time offenders with no knowledge of prison environment.• Individuals in debt.• Individuals seen as vulnerable due to physical factors such as height, weight and appearance.• Individuals seen as vulnerable due to limited social skills”.[36]There is also a section dealing with trauma informed searching (see paragraphs 6.5.10 to 6.5.14):
“6.5.10. Trauma informed searching means that the staff understand what trauma is and about some of the impacts of trauma for individuals. Individuals who are neuro diverse for example, those with autism, Asperger’s, ADHD, acquired brain injury, and/or mental health conditions will also respond much better to a trauma informed approach. 6.5.11. In respect of searching there are key ways of ensuring our approach to searching is trauma informed thereby minimising or removing the chances that individuals could be triggered or re-traumatised by aspects of the way searching works. …. 6.5.13 Trauma informed searching includes: • Explaining clearly what you are going to do before you do it, and make sure they understand what you have said. • Taking your time. For example, if you are carrying out a search, explain that you have to check the collar of their shirt, and that you will need to touch around their neck in order to do this. Tell them this before you do it and explain that this is a normal part of the procedure. • Don’t shout. Even though somebody may be distressed and shouting – do not shout back - keep a low calm voice. This might help them to become less distressed. Some people who have been physically abused are very triggered by shouting as it can remind them of their abuser. • Keep a calm and reassuring manner and offer the prisoner the opportunity to ask questions about the next stage of the searching process prior to it beginning.”
[37]There is a section of guidance regarding Transgender prisoners (see paragraphs 6.7.4-6.7.5).[38]A further section of the guidance deals with disability searching considerations (including persons on the autism spectrum and/or with any range of learning disabilities (see section 6.8). As regards XRBS, paragraphs 6.8.8 and 6.8.9 provide: “6.8.8. A pragmatic and considerate approach should be applied to body scanning prisoners with disabilities as it may not always be possible to conduct a scan. See X-ray body scanner Policy Framework. ”6.8.9….• X-Ray Body Scanner o A person wearing a pacemaker may be subject to a search using the X-ray body scanner” (3) XRBS and the 2004 Regulations[39]For present purposes an X Ray Body Scanner is a machine which: “uses ionising radiation to provide high resolution and real time body images….It is used to detect items ingested or internally concealed within body cavities that may cause harm or threats to the person being scanned or other people within the prison. Some of the items that it can identify are:• metallic and non-metallic weapons• explosives• drugs• mobile phones, USB’s and SIM cards• jewellery, gems and precious metals.” (Appendix F to the 2025 Policy Framework as defined later in this judgment).[40]As paragraph 5.5 of the 2025 Policy Framework sets out (which paragraph is set out later in this judgment), exposure to ionising radiation carries a risk to health. This informs the regulatory regime aimed at limiting such exposure through XRBS both by dosage limits and by requiring such exposure to be justified and proportionate.[41]I do not understand the evidence of Mr Vanelli, senior caseworker within the Claimant’s solicitors, to be disputed when he says:
“[XRBS] scans produce high-quality images of the torso and genital area. It is my understanding that due to common modes of internal concealment, the analysis of these scans will necessarily involve a close examination of the genital area.”
[42]As regards XRBS, the prison estate is governed by Part 7A of the Justification of Practices Involving Ionising Radiation Regulations 2004 (the “2004 Regulations”). The 2004 Regulations seek to implement Council Directive 2013/59/Euratom laying down basic safety standards for protection against the dangers arising from exposure to ionising radiation. As the explanatory note to the 2004 Regulations sets out: “The Regulations introduce the international radiological protection principle of generic “justification” of classes of practices involving exposure to ionising radiation, that is weighing the health detriments of such practices against economic, social or other benefits, to implement Article 6(1) and 6(2) of the Directive, which in turn gives effect to Recommendation No. 60 of the International Commission on Radiological Protection”.[43]In broad terms, and for relevant purposes,(1) it requires a person carrying out an imaging practice (which includes the use of X-Ray body scanners) to ensure each individual exposure is justified or that, where there is a practice, it is the subject of regular reviews. Individual exposure will be justified where the individual or societal benefit resulting from exposure outweighs the health detriment that it may cause;(2) an imaging practice carried out by a person must have been approved by what is defined as “the Justifying Authority” (for present purposes, the Secretary of State for the Home Department see regulation 6);(3) there are constraints on dosage;(4) the usual rule that there must be prior informed consent of the individual subjected to exposure, that requirement does not apply to law enforcement agencies, which includes “prison authorities”. These relevant provisions are contained in regulations 21D, 21E, 21F, and 21G:
“Individual justification and regular review 21D. — (1). A person carrying out an imaging practice must— (a) ensure that each individual exposure is justified; or (b) carry out regular reviews of the implementation of that imaging practice and after each review promptly provide to the Justifying Authority a written report summarising the results of that review. (2) For the purposes of this regulation an individual exposure is justified where the individual or societal benefit resulting from the exposure outweighs the health detriment that it may cause. (3) Reviews under paragraph (1)(b) must be carried out at a frequency which is appropriate having regard to the specific circumstances of the imaging practice including, but not limited to, how often the exposures take place. Approvals and requirements for practices: 21E. — (1) A person must not carry out a particular imaging practice unless the Justifying Authority has granted an approval to that person in respect of that particular imaging practice (an “Approval”) and the Justifying Authority has not withdrawn the Approval. (2) A person may apply to the Justifying Authority for an Approval in respect of a particular imaging practice. (3) The Justifying Authority must in any Approval it grants set out requirements, including criteria for implementation, with which the person must comply in carrying out the particular imaging practice. (4) In establishing the requirements to be contained in an Approval, the Justifying Authority must consult Dose constraints 21F. The dose constraints for imaging practices must be significantly below the dose limits set out in paragraphs 5 and 7 of Schedule 3 to the Ionising Radiations Regulations 2017. Consent 21G. — (1) A person proposing to subject an individual to an exposure as part of an imaging practice must first provide a reasonable level of information about the proposed exposure to, and obtain prior consent for the exposure from, the individual to be exposed. (2) The requirement in paragraph (1) to obtain prior consent does not apply to law enforcement authorities. (3) In this regulation, “law enforcement authority” means any authority responsible for preventing, detecting, investigating, combating and punishing criminal offences, including, but not limited to, the police, any prosecutor, any judicial authority and any prison authority. (4) In paragraph (3), “prison authority” includes— (a) a governor of a prison; (b) an officer of a prison; (c) a person working at a prison who is authorised by the governor of the prison to exercise powers of search; (d) a director of a contracted out prison; (e) a prisoner custody officer of a contracted out prison; (f) a worker at a contracted out prison who is authorised by the director of the contracted out prison to carry out restricted activities.”
[44]The dosage limits set out in the Ionising Radiation Regulations 2017, Schedule 3 paragraphs 5 and 7 are as follows. In most cases the limit is 1mSv (millisievert) in any calendar year: “Other persons 5. Subject to paragraph 6, for the purposes of regulation 12(1) the limit on effective dose for any person other than an employee or trainee referred to in paragraph 1 or 3, including any person below the age of 16, is 1 mSv in any calendar year. 6. Paragraph 5 does not apply in relation to any person (not being a carer and comforter) who may be exposed to ionising radiation resulting from the medical exposure of another and in such a case the limit on effective dose for any such person is 5 mSv in any period of 5 consecutive calendar years. 7. Without prejudice to paragraphs 5 and 6—(a) the limit on equivalent dose for the lens of the eye is 15 mSv in any calendar year;(b) the limit on equivalent dose for the skin is 50 mSv in any calendar year averaged over any 1 cm 2 area regardless of the area exposed;(c) the limit on equivalent dose for the extremities is 50 mSv in a calendar year.” (4) The Use of X-Ray Body Scanners (Adult Male Prisons), a Policy Framework containing the Requirements as conditions for approval under the 2004 Regulations[45]As I have said, the Secretary of State for the Home Department is the relevant “Justifying Authority” for the purposes of the 2004 Regulations (see regulation 6). In that capacity, the Secretary of State has approved Requirements of Practice appended at Appendix B to a Policy Framework under the name “Use of X-Ray Body Scanners (Adult Male Prisons)”. Appendix B to that Policy Framework sets out a set of requirements. Approval by the Secretary of State under the 2004 Regulations was issued on condition that those requirements are complied with.[46]The policy framework was originally issued in 2019. It has been revised, amended and updated from time to time. For present purposes the two versions to which I have been referred are:(1) The version in force between 03 October 2022 and 16 October 2025, covering the period when the Claimant was scanned at HMP Wakefield and HMP Berwyn in June 2025 (the “2022 Policy Framework”);(2) The version in force since 16 October 2025 (the “2025 Policy Framework”). For convenience, I refer to the 2022 Policy Framework and the 2025 Policy Framework as “the Frameworks”.[47]The 2022 Policy Framework was supplemented in December 2024 by further guidance called “Use of X-Ray Body Scanners: Cohort Scanning Guidance” (the “2024 Cohort Guidance”). Much of that guidance has now been subsumed within the 2025 Policy Framework.[48]At one time, the Claimant challenged the 2024 Cohort Guidance but that challenge was dropped in the Re-Amended Statement of Facts and Grounds.[49]I set out below what is intended to show the 2022 Policy Framework, with the additions and amendments made to it in the 2025 Policy Framework. Wording in square brackets is wording that was originally contained in the 2022 Policy Framework but which is missing in/was removed from the 2025 Policy Framework. Underlined wording is wording that was inserted into the 2025 Policy Framework. 1.1 This Policy Framework provides end-to-end instruction and guidance on the procurement, installation and use of X-ray body scanners in Adult male prisons to detect if prisoners are attempting to conceal items internally. The mandatory requirements in this document set out the minimum required for a prison to be compliant with legislation and HMPPS’s Requirements for Practice for Prisons.[2]“1. Purpose Constraints 2.1 This Policy Framework does not replace or change any of the requirements set out in [PSI07/2016 Searching of the Person The SPF replaced PSI 07/2016. ] Searching Policy Framework and an X-ray body scan must not be used as an alternative to a full or rub down search. Governors must therefore ensure that the use of all X-ray body scanners are consistent with both this Policy Framework and the policy on the use of technical search aids more generally, as set out in [PSI 07/2016 Searching of the Person]Searching Policy Framework ensuring that processes and arrangements for their use are reflected in the Local Searching Strategy.[3]Evidence3.1 Some prisoners attempt to intentionally undermine HMPPS’s security search methodologies by hiding items inside their bodies. HMPPS has a duty to protect prisoners, those working in or visiting prisons, as well as the public, by taking steps to prevent the importation and supply of drugs and other illicit items into prisons.3.2 HMPPS’s [Security, Order and Counter Terrorism (SOCT)] Directorate of Security(DoS)has, with prisons, conducted technical tests of the X-ray body scanner equipment for its effectiveness in confirming whether a prisoner suspected of internally concealing illicit items is doing so or not. If used as part of a searching strategy and with a trained, professional staff group, X-ray body scanning technology can provide an effective means of confirming the intelligence or reasonable suspicion that a prisoner is attempting to conceal items internally.3.3 The principal pieces of legislation relevant to the use of X-ray body scanners are the Justification of Practices Involving Ionising Radiation Regulations 2004 (as amended) (JOPIIRR), the Ionising Radiation Regulations 2017 and Health and Safety Work At WorkAct 1974.3.4 The Justification of Practices Involving Ionising Radiation Regulations 2004 (as amended) require that any use of X-ray technology is approved by the “Justifying Authority”. For HMPPS, the Justifying Authority is the Secretary of State for the Home Office. Approval from the Justifying Authority has been issued on the condition that a set of Requirements for Practice for Prisons are complied with. The mandatory requirements set out in this Policy Framework translate the actions that are necessary to comply with the Requirements for Practice (which can be viewed in full at Annex B).[4]Outcomes• Improve the capability to detect illicit and unauthorised items conveyed by way of internal concealment.• Contribute to a reduction of drugs and other illicit and unauthorised items being conveyed into or out of a prison.• Contribute to a reduction in the risks posed by illicit and unauthorised items being conveyed into or out of a prison.• Reduce the risk that concealed items may cause harm to the prisoner.• Deter exploitation of vulnerable prisoners to convey concealed items.• Provide the basis for legal compliance to manage the safety and other health risks associated with the use of ionising radiation (X-ray).[5]4.1. By following the mandatory actions within this Policy Framework, it is expected that prisons can: Requirements … Data Protection and Record Keeping 65. …. 5.60. The date, dosage and justification (either intelligence or reasonable suspicion) for each scan must be recorded on HMPPS’ case management system NOMIS The National Offender Management Information System. It is an Operational database used in prisons for the management of offenders. It contains offenders' personal details, age group, type of offence(s), type of custody (including those remanded on bail and sentenced), sentence length, prisoner movement data (internal and external), case note information, addresses of the prisoner (release, reception and curfew) and involvement in breaches of prison discipline. It also includes full details of the prisoners’ visits history, activities (both paid/unpaid work and offender rehabilitation programmes) and details of the prisoners’ financial records whilst in prison. . Annex Gdetails how these details are to be recorded on NOMIS. Justification decisions for the use of the X-ray body scanner on an individual must be recorded as an Intelligence Report or on the monthly security minutes (described in 5.66-5.67); and will form part of the history for the justification of why a particular prisoner was selected to be X-ray body scanned in that instance. 5.61. The X-ray body scan image and associated data recorded on the X-ray body scanner machine must be deleted within 24 - 36 months after the scan has been undertaken unless there is an on-going complaint or litigation from the relevant prisoner. This timeframe is based on the potential need for the image, data, auditing purposes and enables the prison to undertake a 12-month data deletion once per year. Identifying prisoners who may be scanned 5.65. Prisons can X-ray body scan a prisoner without obtaining the prisoners consent See Regulation 21G of The Justification of Practices Involving Ionising Radiation 2004 [sic] [This footnote is as recorded in the Framework Policy.] . 5.66. Prisoners must not be selected for X-ray body scanning on a random basis. 5.67. All cases of exposure to ionising radiation through the use of an X-ray body scanner must be:• fully justified in accordance with The Justification of Practices Involving Ionising Radiation Regulations 2004. This means that the exposure may only occur when the benefit to the individual or society outweighs the health detriment that may be caused to the individual;• necessary for the prevention and detection of crime or disorder and/or connected to: prison security, prison order or prison discipline, or protecting the safety of prisoners, visitors or prison staff; and• proportionate. 5.68. To demonstrate that a scan is justified all five points below must be met:• intelligence or reasonable suspicion suggests that the prisoner is internally concealing items, which may be linked to specific prisoners or cohorts;• there are no other means of detecting the suspected item (for example, a full or rub down search);• it is necessary to reduce the risks posed by illicit and unauthorised items being conveyed into or out of a prison and that these risks outweigh the health detriment caused by exposure to radiation;• there are no other circumstances of the prisoner, the intelligence or the reasonable suspicion, which would make the exposure disproportionate; and• there is evidence that the scan will not cause that individual to exceed the maximum annual dosage constraint of 700 µSv per individual in the current calendar year. The X-ray body scan operator must check the prisoner’s NOMIS record to ensure the dosage constraints have not been met. If records are missing, the prisoner must not be scanned until it is confirmed that they have not exceeded the dosage constraint. 5.69. Use of the X-ray body scanner must be led by intelligence or reasonable suspicion. For example, the action for an X-ray body scan could have come from:• direct communications from the Security Department that the individual is likely to be internally concealing an item;• agreed [action] at the monthly security meeting, including agreement to any cohort scanning;• direct communications from Police, Courts or other law enforcement agencies that the individual is likely to be internally concealing illicit and unauthorised items;• reasonable suspicion during or following a visit that the individual is likely to be internally concealing items; or• reasonable suspicion that the individual is likely to be internally concealing an item which could be based on information on the prisoner’s Prisoner Escort Record (PER)or pre-sentence interview, report or behavioural indicators. 5.70. Any decisions relating to the use of the X-ray body scanner on individuals or groups must be recorded as an Intelligence Report or on the monthly security minutes as described below; and will form part of the history for the justification of why a particular prisoner was selected to be X-ray body scanned in that instance. Monthly security meeting minutes or direct written communications from the Security Department or other agencies are a sufficient record of the justification used. Where intelligence is used as the justification, the format and route for sharing intelligence is by an intelligence assessment provided by the prison intelligence unit via secure email, as per local process. It should not include the evaluation code. 5.71. In some circumstances a prisoner may be part of a [group] cohort of prisoners where there is intelligence or reasonable suspicion [for] that individuals within that cohort are internally concealing items (see paragraphs 5.74-5.78 below) [group to be X-ray body scanned]. However, the prison must still be satisfied that each individual scan is justified and proportionate as described in [5.69] paragraphs 5.67-5.68. 5.72. There are no health reasons why a prisoner should not be scanned, except as provided in paragraph 5.76. A prisoner can still have an X-ray body scan if they have had or are undergoing medical procedures (this includes any form of medical X-ray / radiotherapy). 5.73. If the prisoner reaches the 700 microserverts yearly annual maximum dosage, the member of staff who is first made aware of this, must ensure a ‘Do not X-ray body scan’ NOMIS Alert is added to NOMIS (ensuring that an end date is entered). This NOMIS Alert can then be removed at the start of a new calendar year (1st January). Cohort Scanning 5.74. Cohort scanning is where a prison opts to scan a cohort of prisoners where there is intelligence or reasonable suspicion that prisoners in the cohort are conveying illicit items internally via a particular route into or within a prison, but it has no other means of determining which specific prisoners are doing so. Each individual scan of a member of the cohort must still comply with the requirements of paragraph 5.67 and be justified in accordance with paragraph 5.68, including ensuring they are suitable to be scanned and would not exceed the maximum annual dosage The reason for the scan must recorded in accordance with paragraph 5.70. 5.75. The scenarios where a cohort scan could be used include, but are not limited to, new receptions, transfers from another prison, recalls, court returns, release on temporary licence (ROTL). It could also apply if there is intelligence or reasonable suspicion that prisoners in a particular area of a prison, such as a place or work, or a wing are conveying items within the prison. 5.76. The use of cohort scanning must be discussed monthly, this will often be done at the at [sic] the Security Meeting (sometimes referred to as Security Committee). Any decision on cohort scanning must be reviewed and documented at each meeting, with clear supporting evidence provided for any continued cohort scanning or new circumstances for cohort scanning. 5.77. Cohort scanning must not be routinely extended without justification, and any information or data used to justify its use should remain live and relevant. Where it is no longer justified, cohort scanning must cease. Please see Annex H for further information. 5.78. Under no circumstances should prisons conduct random scanning on cohorts of prisoners. 82. Prisoners with Protected Characteristics 83. [5.74]5.79 In line with other government agencies (such as Border Force and the NHS) there is no requirement for the X-ray body scan operator to be the same sex as the prisoner being scanned and this is because images are only X-ray quality. Privacy concerns are mitigated by the fact that the prisoner is not naked. However, the X-ray body scan image could reveal some physical detail of the prisoner being scanned. If the prisoner objects to a female staff member undertaking and interpreting the scan, the prison should, where possible, facilitate a male member of staff to interpret the scan (depending on the prison’s operational capability). This is at the discretion of the prison. Any objections or concerns should be considered on an individual basis based on the specific circumstances. 84. [5.75]5.80 A pragmatic and considerate approach should be applied to scanning prisoners with disabilities as it may not always be possible to conduct a scan. If a prisoner is unable to stand unaided they should not be scanned. If the prisoner is unable to stand unaided, a ‘Do not X-ray body scan’ alert should be added to NOMIS. The staff member who becomes aware of this is responsible for putting the NOMIS alert on the system. 85. …. 86. [5.79]5.84 The Governor must ensure that information is communicated (verbally and in writing) to prisoners before they are scanned on the purpose of the scan and associated health and safety implications. That information must be appropriately conveyed to prisoners with protected characteristics, including those with physical or learning disabilities and those who do not speak English (Advancing Equality for Offenders and Children in Custody PolicyFramework). An example of a Staff and Prisoner information sheet is provided at Annex F. 87. …. 88. Preparing for a Scan 89. [5.80] 5.85 Before conducting a scan, the following steps must have been taken:• You must have assessed that a scan is justified and proportionate ([section] para 5.69). ▪ All cases of exposure to ionising radiation through the use of an X-ray body scanner must be fully justified, proportionate and the individual or societal benefit of the exposure must outweigh any potential health risks. The justification for any scan must be recorded, in all cases, on NOMIS.• You must check the prisoner can be scanned by checking NOMIS alerts. If there is a ‘Do not X-ray body scan’ the prisoner cannot be scanned. ▪ Some prisoners cannot be X-ray body scanned and therefore, NOMIS must be checked.• You must check the prisoner record on NOMIS to ensure that a further scan would not exceed the cumulative dosage limit of 700 μSv per individual per calendar year. ▪ Every instance of exposure from an X-ray body scanner in the current calendar year must be calculated using the information available on NOMIS. If records are missing, the prisoner must not be scanned until it is confirmed that they have not exceeded the dosage constraint.• You must explain the process for X-ray body scanning to the prisoner. ▪ If the justification for a scan remains, the prisoner must be provided with a reasonable level of information about the use of X-ray body scanners and the proposed radiation exposure. Template information sheets are provided at Annex F. ▪ The information must be appropriately conveyed to prisoners with protected characteristics, including those with physical or learning disabilities and those who do not speak English.• You must have provided the prisoner with an opportunity to hand over any illicit or unauthorised items. ▪ Before conducting a scan, the prisoner must be asked if they are in possession of an unauthorised item. In doing so, they must be offered the opportunity to privately hand over any internally concealed items, in line with PSI 07/2016 Searching ofthe Person and relevant hygiene procedures. If the prisoner hands over items, the justification and proportionality of the scan must be reassessed.• You must ensure the prisoner is able to physically undertake a scan (for example the prisoner is able to stand for the duration of the scan).”

Cohort Scanning

[50]…. 5.4. Exposure to ionising radiation (above and beyond exposure that occurs naturally in day to day life) carries a risk to health. Ionising radiation (such as X-ray) can pass through, and potentially change, the structure of cells. This is why all cases of exposure to ionising radiation through the use of an X-ray body scanner must be fully justified (the benefit to the individual or society from exposing a prisoner to radiation must outweigh the health risks to that individual) and be proportionate. Full compliance with the mandatory actions in this policy framework allows HMPPS to manage these health risks. 5.5. Only prisoners can be X-ray body scanned, and they must only be scanned: where there is intelligence or reasonable suspicion that they are internally concealing items; where there is no other means of detecting the suspected items (for example full or rub down search); and evidence that conducting a scan will not cause that individual to exceed HMPPS’ maximum annual dose constraint per individual of 700 microsieverts (μSv) per calendar year. This calculation must include any doses received at other establishments. (For reference, if every X-ray body scan was 6 μSv, the total maximum number of scans a prisoner could have in the calendar year would be 116.) Adherence to this Policy Framework will ensure that all mandatory steps are taken to ensure that every X-ray body scan can be justified and proportionate in line with the Requirements for Practice. Annex B contains the following (among others): “Annex B HMPPS and Privately Contracted Prisons Requirements for Practices for Deploying and Operating X-Ray Body Scanners that utilise Ionising Radiation for Non-Medical Purposes in Prisons.• Any prisoner who may be subject to a scan using ionising radiation must be provided with appropriate and relevant guidance to ensure that they are aware of the purpose of the scan and associated health and safety implications. As a minimum, information notices must be displayed in the location of the scanner and provided verbally before each scan. Information should also be included in prisoner induction packs, provided on entry to the prison.• HMPPS and Contracted Prison Providers must ensure non-medical X-ray machines are used only when it is necessary and proportionate to do so for the prevention and detection of crime or disorder and / or connected to: prison security, prison order or prison discipline, or protecting the safety of prisoners, visitors or prison staff.• Each individual scan / exposure to ionising radiation must be justified and appropriate records must be kept for each scan in accordance with HMPPS national guidance. As part of these records, establishments must demonstrate that the operational / security and societal benefits of exposure outweigh the anticipated health risks to the individual. A scan should only be conducted when the balancing exercise has resulted in this conclusion. …. ….[51]Annex H-Cohort Scanning-Security Meetings and Minutes was added to the Policy Framework and first appears in the 2025 Policy Framework. It deals with the need for monthly Security Meetings (sometimes referred as the Security Committee) to discuss the use of XRBS and justification for decisions on cohort scanning and how either an Intelligence Report or monthly security minutes:
“will form part of the history for the justification of why a particular prisoner/cohort was selected to be X-ray body scanned in that instance….The minutes must set out clearly the cohorts and circumstances in which scanning will take place. This will form part of the justification of why a particular prisoner was selected to be X-ray body scanned as part of a cohort in that instance.”
[52]Annex H also sets out:
“Things for the Security Meeting to consider The Security Meeting can consider a range of data and intelligence to inform their decisions as to whether use of the body scanner is justified for the following month. This could include, but is not limited to: - Finds data. - Local Tactical Assessment information and data. - Local threats and risks identified by the mandatory evidence-informed risk assessment. - Local or national intelligence4. - Intelligence from external agencies, such as police. - Number and rates of positive scans. It will need to be determined locally as to what constitutes a high number or rate of positive scans, considering the number of scans completed, intelligence and size of cohort, amongst any other relevant factors. A smaller number of positive scans doesn’t necessarily mean cohort scanning cannot be justified if it is coupled with intelligence that a certain route is a key conveyance risk to the prison, and this can be justified and documented in the Security Meeting. A prison must take special care when considering whether to continue cohort scanning if there were few or no positive scans in the previous month. This decision must be thoroughly justified and documented monthly for any cohort in the security minutes.”
[53]As can be seen, the XRBS Policy Framework was amended in 2025 and extends the consideration of the concept and “use of cohorts” (or groups as the 2022 Policy Framework referred to). However, many of the relevant amendments were taken from the 2024 Cohort Guidance.[54]I set out below aspects of the 2024 Cohort Guidance which are essentially now to be found in the 2025 Policy Framework:(1) Cohort Scanning is defined as follows: “Cohort scanning is where a prison opts to scan a group of prisoners rather than scanning them on an individual basis. Cohort scanning can be used when a prison has reasons to believe, such as using their intelligence, that prisoners in the cohort are conveying illicit items internally via a particular route into a prison, but it has no other means of determining which specific prisoners are doing so. The prison can therefore decide to scan all prisoners within that cohort, providing justification for this and clearly documenting it. The Local Security Strategy (LSS) should set out the process for undertaking and reviewing cohort scanning. Cohort scanning should not be a continuous practice and should be routinely assessed. The scenarios where a cohort scan could be used includes new receptions, transfers from another prison, recalls, hospital returns, court returns, release on temporary licence (ROTL). These scans are different to individual reasonable suspicion scans, which are conducted when a specific individual is believed to be internally concealing an item, such as following a suspected pass on visits.” [See now especially Policy Framework 2025, paragraphs 5.74-5.78 and Annex H].(2) Monthly Security Meetings are dealt with at length including the things for them to consider, most of which is now in Annex H to the Policy Framework 2025.

The need to control illicit materials and the need for XRBS

[55]The general need to prevent the ingress and egress of illicit materials is obvious and reflected in the Policy Framework Documents that I have referred to. In this case the position is helpfully summarised by Ms Susan Roberts, of HM Prison and Probation Service (“HMPPS”) in her witness statement dated 23 January 2026. Ms Roberts is the policy lead in the Security Procedures team which sits within the Directorate of Security. In this role, she is responsible for oversight and delivery of her policy framework areas across the prison estate. She provides advice on her policy areas to Governors and other Senior Managers on a regular basis. She has responsibility within her remit for the policy frameworks for XRBS and conveyance. She has worked for HMPPS for 42 years in a variety of roles, both in prisons and at headquarters.[56]At paragraph 6 of her witness statement, she explains the position as follows:
“6. The ingress of illicit materials into the prison estate has a negative, destabilising and dangerous impacts on prisoners and staff. Prisoners may bring secret communication devices, blades, drugs or other materials into the prison. Where such items are present within the establishment, they may facilitate the continuance of illegal activities in the community, plan means of escape, result in injury or intimidation or prisoners or staff, or encourage an illicit economy within the perimeter. As a matter of priority, to maintain good order within the prison estate, HMPPS considers that the ingress of illicit materials should be prevented where possible.”
[57]The obvious need to prevent the conveyance of illicit articles into and out of prison, and HMP Wakefield in particular, is also spoken to by Mr Lee Denton, operational manager at HMP Wakefield. He has functional lead oversight for the operations team within HMP Wakefield. Areas under his direct management line include the establishment’s reception area. In his witness statement dated 29 January 2026, he also refers to the importance of XRBS in this context:
“12. HMP Wakefield makes use of XRBS to assess certain prisoners when they enter/leave the establishment. Use of body scanners is an important tool for HMP Wakefield to prevent ingress of illicit materials that may pose a risk to prison staff, other prisoners and potentially the prisoner himself. Use of body scanners is equally important where prisoners leave HMP Wakefield, to avoid the transfer of illicit materials to other establishments (especially those with lower security measures).… 14. As has been explained above, HMP Wakefield houses some of the most dangerous prisoners in the prison estate. HMP Wakefield therefore has strict security measures in place to protect prisoners and staff in cases of transfers within the estate, and the general public in cases where a prisoner is in the community (for example, for medical visits). Body scanners are an important and non-invasive tool to ensure that prisoners are safe to transfer and are used to alert staff to any potential breach at the prison perimeter. Staff receive bespoke training prior to administering body scans. 15. HMP Wakefield must ensure that escape for dangerous prisoners is impossible. Scanning where prisoners exit the establishment ensures that prisoners are not carrying communication devices that may assist them with escape, or blades which may allow them to injure escorting officers/contractors to facilitate escape. Blades and communication devices are two examples of contraband discovered via use of XRBS, which had otherwise been internally concealed by prisoners ahead of a transfer out at HMP Wakefield. 16. It is equally important to ensure that illicit materials (particularly drugs, blades and communication devices) are not conveyed into HMP Wakefield. These items can be used to encourage illicit commerce within prison, injure staff or other prisoners, or otherwise destabilise the establishment. Use of XRBS acts both as a protective mechanism for the establishment, but also as a deterrent to would-be conveyors of illicit materials.”
[58]Mr Yarnall also speaks to the pressure on staff to detect illicit contraband at HMP Berwyn:
“10. In this context [the frequent turnover of prisoners at the prison, see paragraph 9 of his witness statement cited earlier in this judgment], there are significant pressures on HMP Berwyn staff to prevent and detect the conveyance of illicit materials such as communication devices, blades or drugs. These materials can be used by prisoners to continue their illegal activities outside of the estate, cause injury or intimidation of staff or prisoners, or encourage the illicit economy within the establishment. These actions all risk destabilising the good order of HMP Berwyn, which would have potentially significant consequences given the large establishment population. 11. The use of body scanners is incredibly important to the overall safety and stability of prisoners and staff at HMP Berwyn, to maintain good order in a large and dynamic prison population. The use of body scanners complements traditional searching methods as an additional, non-invasive means to detect potential conveyance. In turn, this acts as a deterrent to potential conveyance.”

The Local Policies and practices and the challenged scans of the Claimant in this case

[59]Although there is a challenge to the “policies and practices” relating to the scanning of cohorts at both HMP Wakefield and HMP Berwyn, it is important to note that the policy of cohort scanning at each prison is, in line with the 2022 Policy Framework (as supplemented by the 2024 Cohort Guidance) and the 2025 Policy Framework, something that is reviewed monthly and, from time to time, altered. Further, the relevant decisions as to which cohorts are to be scanned has varied between the two prisons and within at least one of the prisons (HMP Wakefield) over time.[60]It is also important to focus on the precise challenge in this case. The Claimant’s challenges are based upon the proposition that there is a fundamental error infecting the policies as follows:
“ 5. The fundamental error infecting the Policies is that they approve blanket use of X-Ray Scanners on whole “cohorts” of prisoners, irrespective of whether there is any intelligence or suspicion that an individual prisoner is concealing items, and without any general assessment of whether it is necessary to scan an individual prisoner in light of their own individual circumstances.” (Re-Amended Statement of Facts and Grounds paragraph 5) and “the Policies approve the use of X-Ray Scanners for whole “cohorts”, irrespective of the risk profile of an individual prisoner within the cohort, and without any meaningful individual assessment of the proportionality and necessity of scanning any particular prisoner.”
[61]A further complication in the case of the cohort scanning practice that has developed is that part of the scanning decision, that related to risk and, in particular, risk of carrying illicit materials and the need to scan the cohort, is made by the Security Committee of the relevant prison. However, other matters, particular to the individual, such as dosage levels and health, are matters that are considered and dealt with at the time of the scan by the relevant prison official(s) conducting the scan (the “reception scanning staff”).[62]Part of Mr Hurcheon’s oral submissions were to the effect that the reception scanning staff should consider the entirety of the issue as to whether or not it is necessary and proportionate to scan the individual prisoner and that this would involve, in effect, a reconsideration not just of the decision to scan that prisoner as part of a cohort but also whether there were particular risk factors relevant to that prisoner (such as a “good” or “bad” record in relation to previous scans) which might affect the decision to scan that particular prisoner as part of a cohort. (1) HMP Wakefield[63]At HMP Wakefield, at the time of the scanning of the Claimant and thereafter, the policy/practice was to scan prisoners in the following cohorts:(a) prisoners entering prison (new receptions);(b) prisoners transferring into the prison;(c) prisoners transferring out of the prison and(d) prisoners going on or returning from external escorts. As I shall go on to explain, it is in my judgment fairly clear that the final decision to scan in any particular case was however subject to a consideration of circumstances particular to the individual (such as dosage and health), but not circumstances which might bear on the underlying risks of that individual member of the cohort concealing illicit items.[64]The decision at HMP Wakefield to scan the above cohorts is minuted in various minutes of HMP Wakefield’s “Security Committee, Safety and Drug Strategy” Meetings (the “Monthly Minutes”). These meetings appear to take place monthly. It is clear from the material before the court that the committee was presented with statistics regarding scans over the previous month. A summary is set out in the Monthly Minutes of some of these statistics. Also before the court are slides giving a greater breakdown of scans and their results not just over the last month but comparing the position over a number of preceding months and which were placed before the committee. The slides often appear to contain a recommendation for the scanning of cohorts and a justification for the same. For example, the slides used for the August 2025 meeting contain the following: “ Based on the findings over the last 6 months and the most recent information from the body scanner there does seem to be a downward trend in the amount of body scans that are coming up positive. This could have been impacted by us decanting part of our population as part of the FSI project. I will be monitoring this closely. I am happy with the following cohorts for scanning as these are the area's that are coming into and around the establishment.• All escorts for transfer and transfers in.• All intelligence-based scans will be conducted based on ad-hoc intel.”• All incoming prisoners from other establishments or from court as they are arriving from an unsecure nonsterile environment.[65]The minutes of the meeting of the Security Committee, Safety and Drug Strategy meeting on 16 September 2025, record the relevant decision as follows. Having set out some scanning statistics and recording an explanation from the Governor that every inconclusive scan is sent off to subject matter experts the minutes continue:
“Justifiction [sic] Over the past six months, analysis of body scanner data, supplemented by the most recent scanner reports, indicates a discernible upward trend in the number or positive detections. This increase suggests a higher level of accessibility to illicit items within HMP Wakefield, which may be contributing to the rise in positive scan outcomes. In light of these findings, the following scanning cohorts are recommended for continued focus, as they represent key points of entry and movement within the establishment: ◦. All incoming prisoners from other establishments or courts, given their transfer from unsecured and non-sterile environments ◦. All escorts accompanying individuals for medical appointments and court appearances. ◦. All transfers and associated escort movements. ◦. Targeted intelligence-led scans will be performed as necessary, based on real-time intelligence and operational priorities. This approach aims to enhance detection capabilities and mitigate the introduction or contraband within the establishment . Notable - several of positive scans are rescans of same prisoner/incident. Most positives were from one individual attending court. It was discussed at the meeting and agreed that the above will remain based on the figures & findings and the impact the items would have If brought Into the prison. Governor [ ] highlighted that every positive scan is stored & sent to subject matter experts. However, the policy isn't very clear on cohort scanning. Wheelchair bound prisoners will be scanned if they can hold their own bodyweight for a couple of minutes. Hotel 7 will advise.”
[66]There is also before the court a record of and outcome of an X-Ray Body Scanner -Assurance visit to HMP Wakefield on 19 September 2025, the report itself being sent out on 23 September 2025. This appears to be one of a number of annual visits and reports (the last visit being recorded as having taken place on 22 August 2024).[67]The report, among other things, records:(1) That Security Committee Meeting Notes had been seen and that they recorded that the body scanning regime had been discussed at the security committee meeting. The comment is: “I had sight of the last security Committee meeting notes. There was an excellent review and summary of the previous months scans, on the back of which the next months scanning levels were ratified.”(2) That the cohorts who were being scanned were New Receptions, Transfers, Hospital Returns (only category A and B prisoners) and Court Returns.[68]It appears that from about February 2026, the cohorts that are scanned at HMP Wakefield changed. Minutes of a meeting of the Security Committee on 17 February 2026 record the following:
“Body Scanner justification Previous cohort-scanning justification (agreed position) In line with the National X-ray Body Scanner Policy Framework, Wakefield applied group cohort scanning to new receptions, transfers and escorts on the basis of reasonable suspicion and corroborated intelligence that these cohorts present a higher risk of internal concealment of unauthorised or illicit items (e.g., mobile phones, drugs, weapons). Scanning was used only to combat an identified threat, never as a random or routine measure, and not as an alternative to a rub-down or full search. Reasonable adjustments were made where necessary —using alternative search methods where a prisoner could not be safely scanned (e.g., unable to stand unaided). These measures ensured scanning remained proportionate, intelligence-led and necessary to maintain safety and stability. Recent local data: reduction in positive finds from the broader cohort; population profile shifts; and operational demand indicated diminishing marginal benefit of scanning some sub-groups. Ongoing high-risk channel: transfers remain exposed to longer journeys, advance knowledge of transfer dates, uncertainty over scanning practices at sending/receiving sites, and the sustained threat of internal concealment/ingestion to convey items. The national framework identifies scanners precisely to address internal concealment risks. National scrutiny has emphasised that scanning must be targeted to identified threats, with no randomisation and robust record-keeping; our review aligns with that. Wider operating picture: drugs and illicit items continue to undermine safety across the estate, reinforcing the need for intelligence-led, focused measures where risk is greatest (e.g., transfers). New agreed cohort scanning statement (to adopt into LSS and minutes) Revised cohort-scanning justification and scope (agreed position) Following a review of recent outcomes, population changes and operational risk, this establishment will focus cohort scanning on “transfers in and out” only. This decision is based on reasonable suspicion, supported by corroborated intelligence and risk indicators, that the transfer cohort presents the highest likelihood of internal concealment and post-journey secretion of illicit/unauthorised items, compounded by lengthy journeys, advance notification of transfer dates, and uncertainty about practices at other establishments. We will not scan hospital or court escorts as a cohort; these individuals will be scanned only on a case-by-case basis where specific intelligence exists. All scans will remain proportionate and not used as an alternative to a rub-down or full search; every scan will be justified and recorded on NOMIS with radiation dose, and monitored against the 700 μSv per-prisoner annual dose constraint (including cross-site exposure). Equalities and accessibility will be assured: where a prisoner cannot safely stand or scanning would be unsuitable, reasonable adjustments or alternative search measures will be applied. The decision, rationale, data considered and review cycle is documented in Security, Safety and Drug Strategy minutes and cross-referenced in the Local Security Strategy. What we considered in reaching the new agreement Local metrics: falling positive rate in non-transfer cohorts; resource impact; competing search demands. Risk drivers specific to transfers: internal concealment with delayed secretion, journey length, prior knowledge, unknown external compliance—sustaining higher ingress/egress risk. Legal/assurance landscape: prohibition on random or blanket scanning, with PPO oversight and recent High Court findings—necessitating clearly articulated cohort risk and recorded justification. Estate-wide harms picture: drugs and illicit articles remain a significant driver of harm, requiring targeted and proportionate controls. The following is now the statement to be used for DPS and escort risk assessments: Prisoner scanned under the establishment’s authorised transfer cohort in line with the National X-ray Body Scanner Policy Framework: transfers in and out present heightened risk of internal concealment of unauthorised/illicit items (e.g., mobile phones, SIMs, drugs, drug-impregnated materials, small weapons) based on reasonable suspicion and corroborated intelligence; such items could compromise escorts, aid escape, cause injury to staff/prisoners, or destabilise the establishment (especially via drugs or mobile phones). Scanning is intelligence-led (not random) and not used as an alternative to rub-down/full search; justification and radiation dose recorded on NOMIS, monitored against the 700 μSv annual dose constraint (including cross-site exposure). Equality/accessibility assured—had scanning been unsuitable (e.g., unable to stand safely), reasonable adjustments or alternative search measures would have been applied. ACTION: [ ] to ensure this is share with reception staff. [ ] to ensure LSS is updated and escort collators briefed.”
Previous cohort-scanning justification (agreed position) New agreed cohort scanning statement (to adopt into LSS and minutes) Revised cohort-scanning justification and scope (agreed position) What we considered in reaching the new agreement The following is now the statement to be used for DPS and escort risk assessments: ACTION: [ ] to ensure this is share with reception staff. [ ] to ensure LSS is updated and escort collators briefed.”

ACTION: [ ] to ensure this is share with reception staff. [ ] to

[69]It is then necessary to consider how the policy decision to scan particular cohorts at HMP Wakefield was then given effect to.[70]The evidence on this subject comes from Mr Denton. In his witness statement dated 29 January 2026 he says as follows:
“14. As has been explained above, HMP Wakefield houses some of the most dangerous prisoners in the prison estate. …Body scanners are an important and non-invasive tool to ensure that prisoners are safe to transfer and are used to alert staff to any potential breach at the prison perimeter. Staff receive bespoke training prior to administering body scans. 15. HMP Wakefield must ensure that escape for dangerous prisoners is impossible. Scanning where prisoners exit the establishment ensures that prisoners are not carrying communication devices that may assist them with escape, or blades which may allow them to injure escorting officers/contractors to facilitate escape. Blades and communication devices are two examples of contraband discovered via use of XRBS, which had otherwise been internally concealed by prisoners ahead of a transfer out at HMP Wakefield. 16. It is equally important to ensure that illicit materials (particularly drugs, blades and communication devices) are not conveyed into HMP Wakefield. These items can be used to encourage illicit commerce within prison, injure staff or other prisoners, or otherwise destabilise the establishment. Use of XRBS acts both as a protective mechanism for the establishment, but also as a deterrent to would-be conveyors of illicit materials. 17. HMP Wakefield’s practices on XRBS rely on the relevant legislative rules and particularly on the National Policy. HMP Wakefield does conduct cohort scanning, where groups of transfers into the establishment are scanned. Cohorts are determined on the basis of intelligence indicating that those groups pose a greater risk for ingress of illicit materials. 18. The results of body scans are discussed at monthly security meetings as a matter of importance, given the foregoing discussion of the importance of a safe perimeter at HMP Wakefield. The monthly security meeting minutes discussing XRBS for January – July 2025 have been disclosed in these proceedings. Those minutes begin with an overview of the number of scans conducted in the previous month, followed by a breakdown of the positive scans. After discussion of these results, security agree on cohorts to be scanned in the upcoming month. Cohorts are thereby assessed on a dynamic basis in accordance with both intelligence and establishment data. …… 20. There is no blanket policy that individuals who fall part of an identified cohort will be scanned without regard to their circumstances, as required by the Regulations and/or National Policy. There are reasons why a scan might not be required or appropriate, for example where prisoners are unable to use body scanners due to medical conditions (for example, prisoners with limited mobility or wheelchair users). Prisoners cannot be scanned where they cannot stand unaided, as it is against the National Policy to scan a prisoner in a seated position. Additionally, body scanners will not be used where prison staff may be put at additional risk by allowing the prisoner to move through the scanner under restraint. No scan would be conducted where doing so would result in the prisoner exceeding the permissible levels of radiation exposure set out in the Regulations. 21. In summary, staff at HMP Wakefield are trained to conduct XRBS in accordance with National Policy. Staff have additional training available to them on periodic bases. Practices at HMP Wakefield are conducted in accordance with National Policy, where intelligence indicates a higher risk of conveyance during ingress to or egress from the establishment. Use of body scanners is an important tool for the maintenance of a secure perimeter at HMP Wakefield, which is essential for the function of a Dispersal prison.”
[71]That can also be taken together with, for example, the Minutes of the Security Committee meeting in February 2026 that I have set out earlier in this Judgment.[72]As regards the specific scans of the Claimant at HMP Wakefield which are challenged in this case, Mr Denton says as follows: “23. This scan was justified in accordance with cohort scanning practices as discussed and agreed at the relevant monthly scanning review, the minutes of which have been provided to the Court. In addition to the justification of the scan on the basis of forming part of the cohort, I consider it likely that staff at HMP Wakefield would have also taken into account the Claimant’s history of conveyance into the prison estate, including relevant positive scans via XRBS at HMP Rye Hill on 9 February and 10 February 2024. However, I cannot confirm this with certainty. In any event, there was likely sufficient individual justification for the Claimant’s scan, over and above cohort justification.24. As such, the Claimant was scanned in accordance with intelligence records and in order to ensure safe transfer from HMP Wakefield to HMP Berwyn.25. Moreover, in addition to the general risk the Claimant posed due to forming part of a cohort to be scanned (transfers), and the individual risk posed by the Claimant, the Claimant’s transfer posed an additional risk for conveyance given that he would have had advance notice of his pending transfer. Advance notice of a pending transfer is generally viewed as increasing the risk of potential concealment to aid escape or take illicit items to the new establishment.26. Taking the Claimant’s history and present circumstances into account as at 27 June 2025, the Claimant’s scan was justified in terms of his risk of conveyance, and further the scan did not pose a risk to him of exceeding radiation exposure limits.” (2) HMP Berwyn[73]At HMP Berwyn, at the time of the scanning of the Claimant and thereafter, the policy/practice was to scan prisoners in the following cohorts:(a) prisoners entering prison (new receptions);(b) prisoners transferring into the prison;(c) prisoners going on or returning from external escorts (e.g. to attend a medical appointment or court) and(d) prisoners being recalled on licence. As I shall go on to explain, it is in my judgment fairly clear that the final decision to scan in any particular case was, as it was at HMP Wakefield, subject to a consideration of circumstances particular to the individual (such as dosage and health), but not circumstances which might bear on the underlying risks of that individual member of the cohort concealing illicit items.[74]The decision at HMP Berwyn to scan the above cohorts is minuted in various extracts from the minutes of HMP Berwyn’s Security Committee (the “Monthly Minutes”). These meetings appear to take place monthly. Body scanner figures are recorded as having been discussed in “the LTB Update” and scanning percentages then agreed as per a table. The “Further comments” column contains different information in different months but the cohort and the decision to scan was constant during the period over which records have been provided.[75]The recorded decision as regards the meeting of the Security Committee on 24 June is as follows: “The Body Scanner figures were discussed in the LTB update and the below scanning percentages were agreed. Cohort Intelligence Body Scan Percentage of Prisoners scanned Any further comments Agreed in SCM (if not please explain) New Receptions Realistic possibility Y 100% Y Transfers in Realistic possibility Y 100% Y Licence recalls Realistic possibility Y 100% Y External escorts Realistic possibility Y 100% Due to the high number of under the influence reports all escorts to be body scanned Y ROTL Assumed by me to be Release on Temporary Licence N/A N 0% No current ROTL prisoners Y[76]The Minutes of the Security Meeting of 2 October 2025 (apparently being in effect the September meeting which had been “pushed back due to operational reasons”), identify further examples of matters taken into account when identifying whether cohorts were to be the subject of XRBS. They also identify a mistake that had happened in that only 50% rather than 100% of one particular cohort had been identified for XRBS. The relevant extract of the Minutes is as follows: “Regarding the Body Scanner, it was noticed that we made an error with the cohort scanning guidance and that this was rectified as soon as it was noticed. Cohort Intelligence Body Scan Percentage of Prisoners scanned Any further comments Agreed in SCM (if not please explain) New receptions Realistic possibility Y 100% Accounted for 50% of this month’s positive scans Transfers in Realistic possibility Y 100% Intel to suggest transfer prisoners are exploiting this avenue Licence recalls Likely Y 100% Due to determinate recall length External escorts Realistic possibility Y 100% Was50% but changed to 100% due to risk in area following guidance from legal team. Rectified immediately upon knowledge. ROTL Assumed by me to be Release on Temporary Licence N/A N 0% No current ROTL prisoners[77]The X-Ray Bodyscanner Assurance Visit report for HMP Berwyn which is before the court, was sent out on 29 August 2025 and reflects conclusions following a visit on 20 August 2025 (the last one being 19 September 2024).[78]The report confirms that the body scanning regime was discussed at the Security Committee meeting and that the writer had had sight of the meetings notes for July which “had a very good graph of the scanning stats and the next month’s scanning was ratified.” The cohorts being scanned were identified as being New Receptions, Recalls and Transfers. The Feedback within the box on the form to record the same was as follows: “A solid performance from HMP Berwyn with greens in all three key areas. An image interpretation score of 6%is also highly commendable. There were some pockets of poor practice, such as prisoners being scanned holding footwear and prisoners details being entered in the wrong order on the machine, but these were isolated incidents. There's not much else to say, other than 'Well Done'. Your next assurance visit will be in12months time”.[79]Again, it is necessary to consider how the policy decision to scan particular cohorts was then given effect to, in this case at HMP Berwyn.[80]The evidence on this subject comes from Mr Yarnall. In his witness statement dated 29 January 2026 he says as follows:
“13. …HMP Berwyn practices cohort scanning. HMP Berwyn practices cohort scanning on the basis of intelligence on ingress of contraband into the establishment. The decision on which cohorts to scan is made on a monthly basis at the HMP Berwyn Security Committee meeting. The decision to scan any cohort is made jointly by the Security Committee, which consists of governor-grade officials, security staff and wing staff. Such decisions are made following review of body scanning data of the previous month, including the number of scans, positive scans, and ingress of illicit items. 14. Where a cohort is identified as a potential risk for conveyance of illicit materials, the general position is that all members of that cohort will be scanned, subject to individual circumstances. This practice is in accordance with the National Policy. For approximately two months (July and August 2025), HMP Berwyn took the position to scan 50% of an identified cohort. The rationale behind this decision is unclear. This has now been rectified, as that approach had not been in compliance with the National Policy. 15. Although the decision on cohort scanning would theoretically apply to all members of that cohort, body scans are only conducted where individually justifiable, in accordance with circumstances and National Policy. For example, prisoners with limited mobility or wheelchair users will not be scanned, nor would prisoners be scanned where a scan would cause them to exceed the exposure limit set by the Regulations. 16. Staff receive bespoke training prior to administering body scans. There is additional training available to staff on periodic bases. Further upskilling can either be provided by the (central) Body Scanner Governance and Support team, where a specific training need has been highlighted, or on request from the establishment. HMP Berwyn does not have a local XRBS trainer. The use of body scanners, including review of local policy, justifications and record keeping, are reviewed and audited annually by a central body within HMPPS. The last assurance visit took place in August 2025. HMP Berwyn passed in respect of the core three areas of the audit – namely justification, image interpretation and recording.”
[81]Mr Hutcheon made various criticisms of the material before the court in terms of the roles of the Security Committee at each prison. He submitted that not all minutes of meetings were complete; those before the court covered only a certain number of months; within a run of some months, there appeared to be some months meetings or minutes which did not take place or were missing; and decisions and justification were often recorded in the same terms over different sets of minutes. Further, and this is a criticism with which I do agree, the contemporaneous documents had been disclosed but without any evidence explaining what they show or any fuller picture lying behind the brief recorded decisions they contain. Further, the evidence as to communication of relevant decisions to the reception staff carrying out the scans was limited and no contemporaneous documents regarding this had been produced.[82]However, it is necessary to focus on what the challenge of the Claimant is and what it is not. The challenge is not a challenge to the manner in which a cohort scanning policy was reached or maintained but a challenge to the effect of such policy, i.e. that it is said to be a blanket policy without consideration of the individual circumstances of a prisoner falling within a cohort.[83]Having considered the evidence before me I come to the following conclusions:(1) In the case of each of the two prisons in question, the Security Committee reached a relevant decision on the scanning of cohorts which was reviewed monthly and the position regarding cohort XRBS for the following month determined.(2) There is no challenge to the actual decision making process in either prison by which cohorts for scanning were identified. However, the evidence is clear that the decisions were made at Security Committee level and that they were based on intelligence in terms of data, primarily if not entirely being based on an assessment of the percentage of “finds” of illicit materials resulting from scans.(3) For present purposes, there is no material substantive difference between the relevant parts of the 2022 Policy Framework (supplemented by the 2024 Cohort Guidance) and the 2025 Policy Framework.(4) In each prison the identification of cohorts was on the bases that such identification: (a) was not random; (b) that there was intelligence or reasonable suspicion that prisoners in the cohort were conveying illicit items internally via a particular route into or within a prison, but there were no other means (than XRBS of the cohort as a whole) of determining which specific prisoners were doing so; (c) the use of XRBS was the only effective method of finding such illicit materials, in that other search methods would not be effective; (d) that the use of XRBS in relation to the cohort would result in some or all of the benefits identified in the bullet points (save for the last one) set out in the 2022 and 2025 Frameworks at paragraph 4 (i.e. improve detection of illicit items conveyed by internal concealment; contribute to the reduction of illicit items being conveyed into or out of prison; contribute to a reduction of risks posed by illicit items being conveyed into or out of prison and so on); (e) that subject to any factors personal to the prisoner, the benefits of the use of XRBS on all members of the cohort identified would outweigh the health detriment to prisoners within the cohort and would be justified and proportionate given the outcomes identified in (d).[84]At the coalface, that is at the reception area where the scanning took place, relevant prison staff would make a decision as to whether to scan and:(1) The individual prisoner would be identified as falling within the cohort identified for scanning by the relevant Security Committee. As such this would identify the prisoner as being a person that is not chosen for scanning at random but that they are a person linked to intelligence or reasonable suspicion suggesting that the prisoner is internally concealing items; that there is no other means of detecting the suspected items; that it is necessary to reduce the risks posed by illicit and unauthorised items being conveyed into or out of prison and that (subject to any considerations personal to the prisoner), the risks outweigh the health detriment caused by exposure to radiation and that (subject to any considerations personal to the prisoner) the exposure would be proportionate. In other words that the factors underlying the decision of the Security Committee in identifying the cohort and as set out in sub-paragraph (d) of the preceding paragraph of this judgment apply and apply to this prisoner.(2) Whether or not the scan should not take place because of the individual dosage history of that person (i.e. that if it would cause the prisoner to exceed the maximum annual dosage constraint laid down by the 2022 and 2025 Frameworks, then that prisoner should not be subject to XRBS).(3) There are no other considerations personal to the prisoner that would make the exposure disproportionate. Such matters could include the physical state of health of the prisoner (i.e. the ability to stand up) and risks to prison officers (as identified by Mr Denton). In addition, it seems to me obvious that if a prisoner raised the point referred to in the 2022/2025 Framework guidance at what was paragraph 5.74 (now 5.75) regarding same sex scanning, that too would be dealt with in accordance with that guidance.[85]I accept the submission of Mr Hutcheon that the evidence is such that I must assume that the individual prison staff responsible for scanning at reception do not (and under the relevant policy set by the relevant Security Committee, are not to) revisit the relevant decision as to the balance of(a) the risks to prisons etc that are reduced by scanning (and benefit to society as a result) against(b) the risks to health, which the relevant Security Committee has carried out and reached its decision on.[86]There is no evidence that the decisions of the relevant Security Committees to scan the relevant cohorts is subject to some caveat that the prison staff should thereafter, on the day, consider the record of the individual prisoner. That is not what the relevant Security Committees appear to have decided and there is no evidence that this is what was relayed to staff nor that this was the basis upon which they operated. As regards the latter point the suggestion of the relevant witnesses that they consider it was “likely” staff would take individual records into account without being able to confirm this with certainty certainly does not suggest that this was part of the relevant policy.[87]Further such a policy would wholly undermine a decision to identify a cohort. The basis of cohort identification is that it is not possible to identify who within the cohort might be carrying illicit items. If it was possible to differentiate between different prisoners within a cohort by reference to their record in some way, then the cohort would be so defined in a narrower form.[88]Furthermore, and in practice (although this is not so much a point for me), such a position would not appear to be likely given(a) the considerations in paragraph 6.5.3 of the SPF set out earlier in this judgment (dealing with the fact that vulnerabilities may make prisoners susceptible one day and not on another day)(b) without provision of the data that the |Security Committee made its decision on, it is difficult to see how the staff carrying out scans on the day could reach a sensible judgment.[89]However, I reject the submission of Mr Hutcheon that the personal circumstances of the individual prisoner falling with a cohort, were, under the relevant decisions of the relevant Security Committee, not to be taken into account and were not taken into account (other than personal circumstances, such as previous record, which relate directly to the risks of that person carrying secreted items). I also reject the submission that the personal circumstances to be taken into account were insufficiently spelled out by the Security Committee decisions. In my judgment, one of Mr Hutcheon’s building blocks for his case, namely the submission that the policy/decisions required “all” members of a cohort to be scanned without any exception whatsoever and without reference to any personal circumstances at all simply goes too far and is not established. Even he accepts that dosage and ability to stand were to be taken into account under each of the relevant policies/decisions.[90]The fact that the statistics record 100% of prisoners within relevant cohorts having been scanned does not of itself show that the personal circumstances that I have identified as properly being taken into account, were not considered nor taken into account by prison staff when carrying out the scanning exercise. There may simply not have been such personal circumstances arising or the report of 100% scanning might simply be a reflection of the decision (100% scanning subject to personal circumstances of health/dosage etc compared with e.g., the slip where there was 50% scanning at HMP Berwyn) being implemented.[91]I also reject the suggestion that the two deponents from the prisons concerned are not able to give relevant evidence as regards policies adopted and relevant decisions of the relevant Security Committee and how they operated within the relevant prison. Mr Denton is directly responsible for HMPS Wakefield’s reception area where the scanning machines are located (and scanning is carried out). Mr Yarnall is head of security and intelligence and therefore has obvious involvement in both security committee and scanning as an aspect of security.[92]Mr Hutcheon suggested that other personal characteristics (beyond health or record relating to carrying goods and dosage), might be relevant but that they were not mentioned in the decisions. He struggled to identify what such matters might be and, in my judgment, if that is a criticism then it is equally one which would apply to the 2022/2025 Frameworks but the Claimant does not attack those policy documents. The decisions of the Security Committees are therefore in line with those Frameworks in this respect.

Decisions/policies of relevant Security Committees: a breach of the 2004 Regulations/the 2022/2025 Frameworks?

[93]Decisions/policies of relevant Security Committees: a breach of the 2004 Regulations/the 2022/2025 Frameworks? The 2022 Framework (supplemented by the 2024 Cohort Guidance) and the 2025 Framework contain more detailed provisions than the 2004 Regulations and the Requirements of the Secretary of State as Justifying Authority approving XRBS in prisons. Logically, if the “local prison policies” comply with the Frameworks then they should comply with the 2004 Regulations.[94]I turn to the Frameworks first. In this respect Mr Hutcheon relies particularly upon R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 at [20] and [26] for the propositions that public authorities owe a public law obligation to follow their published policy and not to maintain or follow different unpublished policies in the absence of good reasons for doing so. He also reminds the court that it is for the court to decide what is the proper legal interpretation of the policies being compared, rather than, for example, deferring to the public authority’s own understanding or description of its policies: Mandalia v Secretary of State for the Home Department [2015] UKSC 59; 1 WLR 4546 at [31].[95]In my judgment, the relevant local prison policies that I have identified comply with the Frameworks.[96]In particular, paragraph 5.68 is met. Of the five points there listed, the first 3 are considered by the Security Committee when identifying the cohort to be scanned. So too is that element of the fourth point regarding the intelligence or reasonable suspicion. This exercise is based on intelligence or reasonable suspicion (as required by paragraph 5.69) and involves the committee being satisfied of the prevention of crime/disorder, prison security etc limb of paragraph 5.67. The prison officers carrying out the scan then identify that the prisoner falls within the cohort and that therefore the conditions considered by the Security Committee apply to that prisoner. Those prison officers then consider and apply the last two items of paragraph 5.68 so far as they relate to personal circumstances of the prisoner (including health reasons referred to in paragraph 5.72), but not anything, such as previous record, which bears upon the risk in the first item of paragraph 5.68. Any decision to scan is then based upon all elements of paragraph 5.68, including proportionality, and complies with paragraph 5.67.[97]The difference between Mr Hutcheon and Mr Scully, on analysis, largely turns on whether the prison officer carrying out the scan must themselves carry out a consideration of all relevant factors to reach a conclusion whether the scan is, as regards the individual in question, proportionate and justified. Mr Hutcheon says that it what is required. Mr Scully says that the individual scan must be justified and proportionate but that that decision can be a product of one level, of the prison identifying a cohort that should be scanned and another level of the prison (the individual prison officer) identifying that the prisoner falls within that cohort and then considering other factors personal to the prisoner (other than risk of carrying illicit items and need for scanning of that prisoner as member of the cohort). In my judgment Mr Scully is correct. What is required is that the individual scan is justified and proportionate not that the prison officer administering the scan (or deciding to scan the individual) must themselves take a decision based on all relevant information, including (in effect) all the material before the Security Committee and in effect re-take the Security Committee exercise of weighing the same.[98]Turning to the detail of the 2004 Regulations and the requirements of the approval given by the Secretary of State as Justifying Authority, I am satisfied that the relevant local policies of the two prisons are compliant with the 2004 Regulations and the requirements set out in Annex B to the Frameworks.[99]As regards Annex B:(1) Scanning of a prisoner who is identified as a member of the relevant cohort will be based on intelligence or reasonable grounds of suspicion that an item is concealed by that person internally (and linked to a cohort). The scan will not be simply “routine” or “on a random basis.”(2) The scanning will be necessary and proportionate for the permitted purposes (prevention/detection of crime or disorder and/or connected to prison security, order or discipline etc)(3) Each one is individually justified (the five steps in paragraph 5.68 of the Frameworks being met).[100]As regards the 2004 Regulations themselves:(1) The individual exposure is decided as being justified (applying the 5 steps in paragraph 5.68 of the Framework) (regulation 21D(1)(a));(2) There has been approval and the terms of approval have been met (see above) (Regulation 21E);(3) The dosage constraints are met (Regulation 21F).

Article 8 of the European Convention on Human Rights

[101]It is conceded by Mr Scully that XRBS scanning of prisoners engages article 8 of the European Convention on Human Rights.[102]Again, the legal principles were not in issue. Article 8 does not lay down an absolute prohibition on a policy or conduct which engages article 8. Rather, such policy or conduct must be(a) in accordance with the law and(b) necessary in a democratic society.[103]I have already explained why I consider that the relevant policy/decisions adopted by each Security Committee was not unlawful. The relevant interference must be pursuant to rules (including policies) which are accessible and allow a person affected to foresee what the outcome will be or how they will be treated with sufficient certainty. There is a dual test of foreseeability and accessibility (see e.g. R (P) v Secretary of State for the Home Department [2019] UKSC 3; [2020] AC 185 at paragraphs [16]-[17]). In my judgment, that requirement is met. The general ability to decide to scan cohorts or groups is clear and accessible from the published Framework Policy. The scanning of cohorts is “foreseeable” and constrained by the principles set out in the Frameworks and the local policy to scan will be communicated shortly before the scan is administered.[104]Mr Hutcheon relies upon MA v Denmark (Decision of the Grand Chamber, App 6697/18, 09 July 2021) to submit that an individualised assessment is necessary, that is, that it will not always be permissible to rely upon group or cohort identification of prisoners needing to be scanned based upon a conclusion that there is intelligence that members of the group or cohort are likely to be carrying and concealing illicit items but it is not possible to identify which members of the group/cohort are carrying/concealing the same. In MA v Denmark what was under consideration was a blanket three year waiting period imposed upon persons with protected status who wished to apply for family reunification. This rule did not allow for “an individualised assessment…in the light of the concrete situation of the person concerned beyond the very limited exceptions” identified in law. However, that case is worlds away from this case. Given the basis for identifying a cohort/group for XRBS, it is difficult to see how any individualised assessment based on e.g. whether the person had previously been found to carry illicit items is going to take matters any further forward and indeed the identification of the cohort is on the basis that it is not possible to identify the persons who are carrying the illicit items (from e.g. past record). Furthermore, as Mr Scully points out, the policy/identification must be regularly reviewed to ensure it is still justified.[105]The other point that Mr Hutcheon also makes is that there must be some ability for the individual prisoner to make representations or to be consulted about the decision making process (see Maslak v Slovakia (No 2) (2022) 75 EHRR 13). This may shade into the requirement of the interference being “necessary”.[106]As I have indicated there is room for the prisoner to raise circumstances personal to him (other than circumstances going to what the prisoner might say would make it more or less likely that he was carrying illicit articles), and the Frameworks are clear about the need to communicate the decision to scan and its basis. Mr Hutcheon however attacks the decision to scan members of a group/cohort without going on to consider whether the risks which underpin such decision are somehow different in the individual case because, for example, if the specific prisoner’s “record” which might, according to Mr Hutcheon, make it more/less likely that the prisoner is indeed carrying/concealing illicit items. That he says, requires the ability to make representations if the interference with article 8 rights resulting from XRBS is to be justified.[107]In this context Mr Scully relies upon the analogy of breathalyser tests for drink/driving. If nothing else, the urgency of the matter does not allow for a process of representations to be made before a scan and e.g. admission to prison. Further, there is no room for submissions along the lines of “I am not a risk because I have a good record”. The whole point of the identification of cohorts/groups for XRBS is that it is not possible within that cohort/group to further narrow down those who are, or are significantly more likely to be, carrying illicit items and those that are not. Mr Scully submits that what is required is an involvement “to a degree sufficient to provide him or her with the requisite protection of his interests (see Maslik paragraph [159]”. He refers to W v UK (8 July 1987) especially at paragraphs [62]-[64]. In that case the issue was compliance with article 8 in the context of decisions made by local authorities in relation to children in care. Clearly relevant to such decisions were the views and interests of the natural parents. But their participation might not be possible or meaningful e.g. where an emergency arises. In this case, as I have said, there will be an urgency in e.g. admitting prisoners to prison. Furthermore, however the decision to scan a cohort/group will be one based on intelligence available to the prison and not on the personal characteristics of the prisoner, such as their record.[108]That leaves the second requirement that the interference is necessary in a democratic society, which imports a proportionality test (see e.g. Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700 at [20] and [74]). In essence it is necessary to consider:(1) Whether the objective of the measure pursued is sufficiently important to justify the limitation of the fundamental right;(2) Whether the measure is rationally connected to the objective;(3) Whether a less intrusive measure could have been used;(4) Whether balancing the severity of the measure’s effects against the importance of the objective, the former outweighs the latter (often put in terms of whether a “fair balance” has been struck between the rights of the individual and the interests of the community).[109]I am satisfied that, applying these criteria, the interference in question is necessary in a democratic society and article 8 proportionate. The justification is clearly set out in the Frameworks and is confirmed by the evidence before me.[110]Accordingly, the challenge under article 8 fails.

The individual scans

[111]The individual scans In the light of my earlier determinations that the relevant policies were lawful, the separate challenge to the three individual scans also fails.[112]I should add that, had the point arisen, I would have rejected Mr Scully’s submission that, by virtue of his record in relation to carrying illicit items, section 31(2A) of the Senior Courts Act 1981 applied in any event. It is difficult to know what the position would have been had the scanning of groups/cohorts not been permitted.

Conclusion:

Conclusion

[113]The challenges by way of judicial review each fail. The parties have lodged an agreed draft form of order to deal with dismissal of the claim and costs. It also deals with an adjournment of the question of permission to appeal and an extension of time to file an appellant’s notice given the holiday season. I make an order in those terms.