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

The claimant challenged the Secretary of State's policy permitting "rub-down" searches of male prisoners by female officers save where a prisoner had a genuine religious or cultural objection. The court held that the policy did not amount to unlawful direct discrimination under the Equality Act 2010 (notably s.13(1) read with the protected characteristics in ss.10 and 11), did not violate Articles 8 or 14 ECHR, and was not unlawful in public law. Key statutory and administrative provisions considered included section 47(1) Prison Act 1952, Rule 41 of the Prison Rules 1999 and provisions of PSI 67/2011 (formerly PSI 48/2010). The judge found the cultural/religious exceptions sufficiently wide and proportionate to legitimate security and management objectives, applied a de minimis approach to the claimant's asserted distinction, and rejected the claimant's evidence of a genuine and sincerely held personal objection as implausible on the factual material.

The claimant, a long-term male prisoner, sought judicial review of the Secretary of State's policy on cross-gender "rub-down" searching, arguing that male prisoners should be able to object to being searched by female officers where they had a genuine and sincere objection not falling within the current religious or cultural exceptions. He advanced claims under the Equality Act 2010 (direct discrimination on grounds of sex and on grounds of lack of religion or belief), under Articles 8 and 14 of the ECHR, and public law grounds.

The court framed the central issues as:

• Issue A: whether the policy amounted to unlawful sex discrimination;
• Issue B: whether it amounted to unlawful discrimination on grounds of lack of religion or belief;
• Issue C: whether Article 8 was engaged and, if so, whether interference could be justified under Article 8(2);
• Issue D: whether Article 14 read with Article 8 was breached;
• Issue E: whether the policy unlawfully fettered or risked unlawful decision-making in breach of public law.

On the legal reasoning the judge concluded: (a) the differential treatment of male and female prisoners was justified by legitimate and fact-sensitive operational considerations (privacy, decency and the particular vulnerabilities of female prisoners) and by the long-standing policy evolution; (b) the cultural exception (covering "sincerely and deeply held belief") and the religious exception were sufficiently wide and designed to be applied case-by-case, so the claimant's proposed additional category would not be necessary in practice; (c) even if there were a narrow distinction between the claimant's proposed ground and the existing cultural exemption, that distinction was de minimis and would not found an actionable sex discrimination claim; (d) the claimant had not shown on the facts a genuinely held personal objection given his complaint history; (e) any interference with Article 8 could be justified as lawful, necessary and proportionate to maintain prison security and order; and (f) the administrative guidance expressly required case-by-case assessment and did not unlawfully fetter discretion or create an unacceptable risk of unlawful decision-making.

The court therefore dismissed the application.

The claim is dismissed. The court held that the Secretary of State's policy on rub-down searches did not amount to unlawful direct discrimination under the Equality Act 2010, did not breach Articles 8 or 14 ECHR given the legitimate aims of prison security and the proportionality of the existing exemptions, and did not amount to unlawful public law fettering or create an unacceptable risk of unlawful decision-making. The cultural and religious exceptions were judged sufficiently wide and the claimant's individual sincerity was disbelieved on the facts.