Dowsett, R (on the application of) v Secretary of State for Justice

A policy permitting female prison officers to conduct rub-down searches of male prisoners, subject to religious and cultural exceptions, was not direct discrimination merely because female prisoners were subject to different search arrangements. Different treatment is not necessarily less favourable treatment where the policies pursue a common principle and are adapted to materially different circumstances. The cultural exception was sufficiently broad, required case-by-case assessment and did not unlawfully fetter discretion. The policy was also proportionate for the purposes of Articles 8 and 14 of the ECHR. A prisoner’s asserted discomfort must be assessed objectively and proved; the claimant had not established a genuine and sincere objection. The judicial review claim therefore failed.

The claimant, a serving male prisoner, challenged the Secretary of State’s policy permitting female officers to conduct rub-down searches of male prisoners. The policy allowed exemptions where a prisoner had a genuine religious or cultural objection, but did not create a general exemption for a genuine and sincere objection based on discomfort or distress.

He alleged direct discrimination under the Equality Act 2010, discrimination because of lack of religion or belief, breaches of Articles 8 and 14 of the ECHR, and unlawful fettering of discretion or an unacceptable risk of unlawful decision-making. The central questions were whether the policy or its application was unlawful and whether the existing cultural exception was sufficiently flexible.

1. Claim dismissed. The policy and its application were lawful.
2. Direct discrimination required a hard-edged factual assessment of whether the claimant received less favourable treatment on a proscribed ground. The court was not to apply a traditional Wednesbury approach, and the Secretary of State had no justification defence to a direct discrimination claim. The two issues of less favourable treatment and the reason for treatment could be intertwined.
3. The different arrangements for male and female prisoners did not automatically constitute sex discrimination. The claimant accepted that male prisoners need not always be searched by male officers. The policies applied a common principle of allowing exceptions for good reasons, while responding to material differences between male and female prisoners. The distinction between the existing cultural exception and the wider exemption sought was in any event de minimis, given the breadth of the exception.
4. The claimant’s lack-of-religion claim failed because the policy also allowed exemptions on cultural grounds, which did not require religious belief. His position was materially different from that of a person whose objection arose from a religious belief. He also failed to show that his own complaints arose from lack of religious belief.
5. The court expressed a provisional view that the searches did not engage Article 8(1), because a serving prisoner did not have the same reasonable expectation of privacy as a person at liberty. It was unnecessary to decide the point finally because, if Article 8 was engaged, the policy was in accordance with the law and pursued public safety, prison security, prevention of disorder and crime, and protection of the rights of others.
6. The policy satisfied proportionality. Searching was rationally connected with preventing escapes, detecting illicit items and maintaining security and order. The religious and cultural exceptions struck a fair balance, particularly given the limited number of complaints and the operational consequences of a wider exemption. Any Article 14 difference in treatment was justified for the same reasons.
7. The 2012 Guidance did not unlawfully fetter discretion. It expressly required case-by-case assessment, contained no hard and fast rules and required all relevant factors to be considered. Its breadth did not create an unacceptable risk of unlawful decision-making.
8. The claimant had not proved a genuine and sincere objection. His complaints about discomfort and embarrassment emerged only after legal advice and many years after the policy began, despite his extensive history of complaining about other prison matters. The court rejected his personal discrimination claim on the facts as well as on the policy grounds.