BK & Anor v The Secretary of State for Justice

In assessing an Article 3 challenge to a prison policy permitting strip-searches, the question is whether the policy, read sensibly and as a whole, exposes prisoners to a significant risk of prohibited treatment. The State must provide adequate and effective safeguards against arbitrariness and abuse of force. It need not minimise risk to the maximum extent possible. In the prison context, policy-makers receive a measure of respect on safety and security issues. A policy for women prisoners is lawful where searches are restricted to intelligence or reasonable suspicion, are proportionate to assessed risk, and are governed by safeguards addressing manner, reasons, vulnerability and impact. Under Article 8, the policy must also satisfy realistic requirements of clarity, justification and proportionality and must not be inherently unfair.

BK and RH, women serving custodial sentences, were unlawfully strip-searched at HMP Send. Liability for the individual searches was admitted, and their damages claims proceeded separately in the County Court. They nevertheless challenged PSI 67/2011, the prison policy used in connection with the searches, alleging that it failed to protect vulnerable women against treatment contrary to Articles 3 and 8 of the European Convention on Human Rights.

The Divisional Court, comprising Rafferty LJ and Collins J, rejected the policy challenge in a judgment delivered on 22 July 2014. It held that the failures in these cases were an aberration. The central issue before the Court of Appeal was whether PSI 67/2011 provided a lawful framework with adequate safeguards and sufficient clarity, and whether it created a significant risk of unlawful or disproportionate searches.

The appeal was dismissed unanimously. Davis LJ gave the principal judgment; Simon LJ and Moore-Bick LJ agreed.

1. For an Article 3 challenge to a prison policy, the question is whether the policy exposes prisoners to a significant risk of treatment prohibited by Article 3. The legal or administrative framework must contain adequate and effective safeguards against arbitrariness and abuse of force. The court adopted this approach from R (FI) v Secretary of State for the Home Department [2014] HRLR 30, [2014] EWCA Civ 1272 and R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148, [2005] UKHL 58.
2. The PSI had to be read sensibly, practically and as a whole. The prison context was central, and the Secretary of State was entitled to a measure of respect in matters of safety, security and policy. The Article 3 threshold for challenging a policy was relatively high. Strip-searching could engage Articles 3 and 8, but could be compatible with them when conducted appropriately and for a legitimate purpose, applying Wainwright v United Kingdom [2009] 44 EHRR 40.
3. The PSI prohibited routine or random full-body searches of women prisoners. It permitted such searches only on intelligence or reasonable suspicion, required searches to be proportionate to assessed risk, and prescribed detailed safeguards concerning their conduct, explanation, vulnerability and impact. The limited evidence did not establish systemic arbitrariness or significant policy failure. The individual searches were aberrations caused by failures to follow the policy.
4. The Article 8 challenge also failed. Read as a whole, the PSI required the need for the search to be explained and required reasonable suspicion, even where that word was not repeated in every provision. The policy satisfied realistic requirements of clarity, justification and proportionality and was not inherently unfair, applying R (Tabbakh) v Staffordshire Probation Trust [2014] 1 WLR 4620, [2014] EWCA Civ 327.
5. The PSI was lawful. The Secretary of State might nevertheless review its drafting and requirements. The appeal was dismissed.

• Court of Appeal (Civil Division) — appeal dismissed. The court upheld the Divisional Court’s conclusion that PSI 67/2011 was lawful.
• Queen’s Bench Division, Administrative Court — Rafferty LJ and Collins J rejected the challenge to the policy on 22 July 2014, holding that the PSI was sufficiently protective of Articles 3 and 8 and that the failures in the individual searches were an aberration.