LW & Ors v Sodexo Ltd & Anor (Rev 1)

The State’s positive obligations under Articles 3 and 8 require more than a formal legal and administrative framework. The State must provide adequate and effective operational safeguards, including supervision and monitoring capable of ensuring that protective rules are implemented in practice.

An isolated mistake will not ordinarily establish a breach by the State. Systemic or widespread illegality caused by fundamental training failures may do so. The obligation is assessed in all the circumstances and does not require a counsel of perfection. In the particularly sensitive context of strip-searching female and transgender prisoners, the State must apply a heightened standard of care to the monitoring of training and compliance.

The claimants were prisoners at HMP Peterborough who had been subjected to five unlawful strip searches. Sodexo admitted breaches of PSI 07/2016 and Article 8, including systemic failures to implement the searching procedures and inadequate staff training. The claimants sought declaratory relief against the Secretary of State.

The central issue was whether the framework established and operated by the Secretary of State provided adequate and effective safeguards against breaches of Articles 3 and 8, including whether the supervision and monitoring of Sodexo’s implementation of the policy were sufficient.

1. Article 3. The claim under Article 3 against the Secretary of State was dismissed. The Court of Appeal had held in R (BK and RH) v Secretary of State for Justice [2015] EWCA Civ 1259 that the predecessor policy, PSI 67/2011, was compliant with Article 3. The same conclusion applied to PSI 07/2016. There was no clear evidence of systemic Article 3 breaches sufficient to displace that conclusion.
2. Applicable framework. The question under Article 8 was whether the State’s framework provided adequate and effective safeguards against breaches in all the circumstances. That required consideration of both the legal and policy framework and the practical measures taken to prevent breaches. Reliance on rules alone was insufficient if they were not effectively implemented.
3. Systemic failure. The admitted failures were not isolated mistakes. Multiple officers had conducted or directed searches on different dates which breached several mandatory requirements, including the sequencing of Level 1 and Level 2 searches, preliminary searches, giving adequate reasons and keeping records. The failures resulted from deficient training and demonstrated systemic and significant failings.
4. Monitoring and training. The Secretary of State could not discharge the Article 8 obligation by leaving training entirely to Sodexo and relying principally on ex post facto compliance testing. That method could identify failures only after unlawful searches had occurred. The framework required adequate and effective measures to ensure, so far as reasonably practicable, that staff were properly trained.
5. Heightened sensitivity. Strip-searching female and transgender prisoners directly engages dignity and privacy rights and concerns a particularly vulnerable population. The Secretary of State was therefore subject to a heightened standard of adequacy or reasonableness in ensuring that the monitoring framework operated effectively.
6. Outcome. The claims were allowed. The Court concluded that the Secretary of State had breached the positive obligation under Article 8 and invited counsel to draw up a suitable declaratory order.