LD & Ors, R. (On the Application Of) v Secretary of State for Justice

A prison strip-search may lawfully be authorised only within a clear framework that respects Articles 3 and 8 of the European Convention on Human Rights. For women prisoners, a full search requires intelligence or reasonable suspicion that an item is concealed on the person. A more intrusive second-level search requires the additional conditions specified by the policy. The prisoner must also be given reasons for the search, although those reasons may be brief and may need to protect confidential intelligence. A policy is not unlawful merely because individual officers breach it. Where the policy is sufficiently clear, rationally connected to preventing contraband, and requires attention to individual vulnerability, it may be compatible with Articles 3 and 8. The individual searches were declared unlawful, but the policy challenge failed.

Three prisoners held at HMP Send challenged strip-searches carried out in February and April 2013. The searches were said to have followed a drug-dog indication or intelligence concerning drugs. The Secretary of State conceded that the individual searches had breached PSI 67/2011 and were unlawful. The remaining issue was whether the policy itself was unlawful because it was insufficiently clear, failed to require reasons, or inadequately addressed vulnerability and the risk of breaches of Articles 3 and 8 of the European Convention on Human Rights.

The court also considered procedural applications concerning amendment, debarring the defendant, declarations and costs.

1. Procedural applications. Although the defendant had committed serious failures to comply with court orders, debarring the Secretary of State was inappropriate. The claims attacked a policy with potentially wide effects, so the court needed the benefit of the parties’ full arguments and evidence.
2. Individual searches. Rule 41 of the Prison Rules 1991 conferred the power to search but did not itself prescribe when strip-searches were permissible. PSI 67/2011 supplied the relevant safeguards. The searches were unlawful because the material relied upon did not establish reasonable suspicion that drugs were concealed on the prisoners’ persons; the level 2 searches were not justified by the required additional circumstances; and reasons were not given. Saying that a prisoner had been targeted was insufficient.
3. Reasons. A prisoner must be told why a search is being carried out. The policy’s requirement that the officer explain the need for the search was sufficient on a sensible reading. Reasons could be brief and need not disclose information that would compromise an intelligence source.
4. Policy challenge. Applying the approach in R (Gillan) v Commissioner of Police of the Metropolis, [2006] 2 AC 307, the policy was sufficiently clear and accessible. It was rationally connected with preventing contraband. Its requirements to distinguish searches of women, follow staged procedures and consider individual circumstances were sufficient to avoid a real risk of unlawful treatment when properly followed. The policy was therefore compatible with Articles 3 and 8.
5. Information and remedy. Under Rule 10 of the Prison Rules 1991, consideration should be given to informing prisoners in advance about the circumstances in which strip-searches may properly occur. That did not remove the separate duty to give reasons in each case. The court granted declarations that the individual searches were unlawful, refused further detail in the declarations, and rejected the challenge to the policy. Costs were awarded to the claimants up to 22 May 2014 and to the defendant thereafter, subject to set-off.