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

The claim concerns unlawful strip searches of four prisoners at HMP Peterborough and whether the Secretary of State breached his positive obligations under Articles 3 and 8 ECHR by failing to provide adequate and effective safeguards against such breaches in a contracted-out prison. The operator, Sodexo, admitted breaches of PSI 07/2016 and Article 8 and accepted there had been a systemic failure to implement the instruction, caused in large part by deficient training of staff. The court found that, while the available precedent supports that the instruction (as a matter of principle) can satisfy Articles 3 and 8 when properly implemented, the Secretary of State’s supervisory framework in relation to HMP Peterborough was not adequate or effective to prevent systemic breaches of Article 8 because it left training and its quality to the contractor and relied on ex post facto compliance checks. The Article 3 claim against the Secretary of State was rejected on the authority of the Court of Appeal decision in R (BK and RH) v Secretary of State for Justice. The court granted declaratory relief in favour of the claimants on Article 8.

Background and parties:

• The four claimants (one transgender man and three women) were strip-searched at HMP Peterborough on 27 July 2017 and 8 September 2017. HMP Peterborough was run by the private contractor Sodexo. The claimants sought judicial review against the Secretary of State and Sodexo.
• Sodexo admitted breaches of PSI 07/2016 and Article 8, accepted a systemic failure to implement the instruction and acknowledged deficient training of its staff. A consent order resolved the claims against Sodexo save for specified outstanding damage and other issues to be determined in the County Court.

Nature of the claim and relief sought:

• The claimants sought declaratory relief against the Secretary of State, alleging he failed to provide adequate and effective safeguards at HMP Peterborough to protect against violations of Articles 3 and 8 ECHR when operating a contracted-out prison. They did not seek damages against the Secretary of State in these proceedings.

Issues framed:

1. Whether the legal and administrative framework and practical supervision and monitoring adopted by the Secretary of State provided adequate and effective safeguards against breaches of Articles 3 and 8 in the circumstances of HMP Peterborough.
2. Whether, on the facts of this case and given Sodexo’s admitted systemic failures, the Secretary of State had breached positive obligations under Article 3 and/or Article 8.

Court’s reasoning and findings:

• The court explained the relevant legal framework (Criminal Justice Act 1991, Prison Act 1952, Prison Rules 1999, PSI 07/2016) and summarised authorities establishing that strip searches engage Articles 3 and 8 and that the State bears positive obligations to take reasonable steps to prevent ill-treatment and disproportionate interferences by private actors.
• On Article 3, applying R (BK and RH) v Secretary of State for Justice, the court concluded there was no proven systemic breach of Article 3 by Sodexo established in these proceedings and therefore no breach of the Secretary of State’s positive obligations under Article 3.
• On Article 8, the court distinguished R (BK and RH) because here Sodexo had admitted systemic failure to implement PSI 07/2016 and admitted inadequate training of staff. The court found multiple, serious and systemic failures at HMP Peterborough: failure to follow the two-stage Level 1/Level 2 procedure, failure to perform required rub-down and metal detector scans, failure to give adequate reasons, and failure to keep central records, together reflecting inadequate training and defective local searching strategy (notably missing required training provisions).
• The Secretary of State’s supervisory regime placed primary responsibility for training on the contractor and relied on ex post facto monitoring (the Compliance Checking Tool, audits and inspections) to detect problems. The court held that reliance on after-the-event detection was not an adequate or effective safeguard in the particularly sensitive area of strip-searching women and transgender prisoners and that the Secretary of State should have had measures enabling active assurance of the quality and delivery of training and implementation of PSI 07/2016.
• Accordingly, the court held the Secretary of State breached his positive obligations under Article 8 by failing to ensure adequate and effective safeguards at HMP Peterborough in the relevant period.

Result: The claim against the Secretary of State was allowed and the court invited the parties to agree a form of declaratory order.

The claim for judicial review against the Secretary of State is allowed in respect of Article 8. The court held that, on the facts of HMP Peterborough, Sodexo admitted a systemic failure to implement PSI 07/2016 caused by deficient training and that the Secretary of State’s supervisory framework was not adequate or effective to ensure implementation; this engaged and breached the Secretary of State’s positive obligations under Article 8 ECHR. The Article 3 claim against the Secretary of State was rejected on authority and the court relied on the absence of proven systemic Article 3 breaches by Sodexo in these proceedings.