Bashir, R (on the application of) v The Independent Adjudicator

In determining whether a prison order requiring a fasting prisoner to provide a urine sample is lawful, the decision-maker must consider the prisoner’s Article 9 rights directly. The analysis requires three questions: whether Article 9 is engaged, whether the order interferes with the protected manifestation, and whether the interference is lawful, pursues a legitimate aim and is proportionate.

A voluntary or personal religious fast may engage Article 9; protection does not depend on the fast forming part of a religious festival or being obligatory. Proportionality is fact-sensitive. The authorities must provide evidence addressing the particular prisoner, timing, testing efficacy, cost and administrative inconvenience. A failure to undertake that analysis may require the adjudication to be quashed.

The claimant, a prisoner at HMP Rye Hill, was convicted by the Independent Adjudicator of disobeying a lawful order under rule 51(22) of the Prison Rules 1999. He had been ordered to provide a mandatory drug-testing urine sample but, while undertaking a three-day personal fast for religious reasons, could provide only 10 ml rather than the required 35 ml and declined water.

He challenged the adjudication on the grounds of inadequate reasons, lack of intention, perversity and interference with his rights under Article 9 of the European Convention on Human Rights. The central issue was whether requiring him to break his fast to provide the sample was a lawful and proportionate interference with Article 9.

1. The adjudication was quashed. The Adjudicator’s reasons were sparse but sufficient. The real error was the failure to address the Article 9 issue and the lawfulness of the order by reference to the particular circumstances.
2. Assuming that the order to provide a sample was lawful, the necessary intention to disobey could be inferred from the claimant’s refusal to drink water after the order had been given. Intention and lawfulness were distinct issues. If the order was unlawful because it disproportionately interfered with Article 9, the question of intention did not arise.
3. The correct Article 9 approach required the Adjudicator to ask:
   1. whether the claimant’s Article 9 rights were engaged;
   2. whether requiring the sample interfered with those rights; and
   3. whether the interference was prescribed by law, pursued a legitimate aim under Article 9(2), and was proportionate.
4. Applying R (Williamson) v SSEE [2005] UKHL 15, the claimant’s personal fast was intimately linked to his religious belief. Article 9 protection did not depend on the fast being obligatory or part of Ramadan or another religious festival. Requiring a sample which could not be provided without breaking the fast was an interference.
5. The mandatory drug-testing regime pursued legitimate aims, including public health and order. However, proportionality could not be determined solely by applying the Ramadan exception in Prison Service Order 3601. The decision-maker had to consider the evidence relating to the individual case, including the possibility of testing after sunset, the forensic effect of delay, the basis for any suspicion, and the actual cost or inconvenience of adjustments.
6. Unparticularised assertions about expense or administrative difficulty were insufficient. The evidence did not establish that a sample after sunset would be impractical or forensically pointless, or that reasonable adjustments would be disproportionate. The judgment did not undermine the general lawfulness of the mandatory drug-testing policy; its conclusions were case-specific and fact-sensitive.

This was a first-instance judicial review in the Administrative Court. The court quashed the Independent Adjudicator’s adjudication.