R (on the application of Dowsett) v Secretary of State for Justice  EWHC 687 (Admin); (2013) PLLR 069
Prison - prisoners - discipline - rub-down searches - search carried out by prison officer of opposite sex - prohibition on cross-gender searching of female prisoners only - gender discrimination - discrimination on grounds of lack of religion - Articles 8 and 14 European Convention on Human Rights - fettering discretion
A policy prohibiting searches of female prisoners by prison officers of the opposite sex, but permitting them for male prisoners, was not discriminatory on grounds of gender or lack of religious belief. Furthermore it did not breach Articles 8 or 14 of the European Convention on Human Rights, nor did it constitute a breach of public law principles as being overly rigid and thus fettering prison officers' discretion.
27 March 2013
(1) The Claimant was a post-tariff life prisoner in a Category D facility. Due to the policy of the Defendant (SSJ) whereby male prisoners could be subjected to rub-down searches performed by members of the opposite sex, D had been searched in this fashion by female prison officers on numerous occasions during his time in prison. Rub-down searches involved significant physical contact between prisoner and prison officer, but the prisoner remained clothed throughout.
(2) D challenged SSJ's policy on the grounds that it was discriminatory, because female prisoners could not be searched by a male prison officer and because the two exceptions - religious and cultural grounds - did not permit of an exception where the prisoner held a genuine and sincere objection. D claimed that for the same reasons the policy breached both Articles 8 and 14 of the European Convention on Human Rights, and that it was unlawful as a matter of public law as the policy was so rigid so as to fetter the discretion of prison officers performing the search.
(3) Silber J held: That it was important to bear in mind the difference between discrimination between the sexes and discrimination against a sex. To show discrimination, not only did a difference in treatment need to be established, but it had to be shown that the treatment of one group was less favourable than that of others (Smith v Safeways  ICR 868 and Aylott v Stockton on Tees Borough Council  IRLR 994 CA followed). D had not received less favourable treatment than other prisoners. It was clear from D's arguments that he accepted that male prisoners could in some situations be searched by female prison officers, and that SSJ was entitled to have a policy which differentiated between male and female prisoners. Policy which differentiated male and female prisoners, and granted exceptions on religious and cultural grounds, existed for good and sensible reasons. It was a common principle that exceptions should only be granted where they are clearly thought-out and based on sensible drafted reasons. This was the case here. Further, there was in fact only a very slight difference between the exception D sought (‘genuine and sincere objection') and the exception on cultural grounds (‘sincerely and deeply held belief'), such that it was appropriate for the court to take a de minimis approach. Even if the policy had been discriminatory, the late stage of his prison life at which D raised the issue of discomfort and embarrassment suggested that D did not in fact believe himself to be less favourably treated or have a genuine and sincere objection to being searched by a female prison officer  - ,  - ;  - .
(4) That D had not received less favourable treatment through being unable to rely on the exception based on religion, as the cultural exception, although not met, remained open to him. Without an exception based on religious grounds the policy would be likely to give rise to indirect discrimination. D's circumstances were materially different from someone seeking to claim the religious exception. There was no evidence that D had attempted to avoid these searches on the grounds of his lack of religious belief and thus even if the policy were discriminatory, D had not be adversely affected by it; his complaints were triggered by the discovery that female prisoners were not subject to the same policy  - ; .
(5) It was likely that D's rights under Article 8(1) of the European Convention on Human Rights were not engaged, as a prisoner cannot expect the same level of privacy as a person at liberty. Even if that were not the case, the policy fell within the exceptions provided by Article 8(2) as being in necessary in the interests of public safety, for the prevention of disorder or crime or the protection of the rights and freedoms of others. The policy was also proportionate as it clearly took into account varying considerations, such as the fact that female prisoners were more likely to find rub-down searches objectionable, particularly as many had previously been abused by men; the policy included exceptions applicable to male prisoners; and the policy provided a fair balance between ensuring good order and discipline amongst prisoners in order to ensure safety in prisons. SSJ was entitled to a margin of interest in considering a proportionate balance between the rights of the prisoner and that the rights of those likely to be affected by security breaches  - .
(6) That if, under Article 14 of the European Convention on Human Rights, there had been less favourable treatment of D, this would have been justified on the same basis as any interference with his rights under Article 8. When considering proportionality, both intention and motive were relevant: SSJ had sought to reach a fair conclusion and proper balance between the interests of male prisoners and operational factors. SSJ was entitled to a margin of appreciation.
(7) That the policy was sufficiently flexible, as guidance made it clear that the exemption based on cultural grounds was to be considered on a case by case basis. The breadth of the available exemptions, combined with guidance as to how they were to be applied, meant that there could not be said to be an unacceptable risk of unlawful decision making.
 -  - Introduction.
 -  - The rules on rub-down searches of prisoners.
 -  - The history of rub-down searches on male prisoners.
 -  - The claimant's history.
 -  - Discrimination and the issues.
 -  - Sex discrimination.
 -  - Lack of religion discrimination.
 -  - Article 8.
 -  - Article 14 read together with Article 8.
 -  - The public law challenge.
 - Conclusion.
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