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

Prison X-ray body-scanner use may be authorised for a defined cohort where intelligence or reasonable suspicion indicates internal concealment, no effective alternative identifies the suspected items, and scanning is necessary and proportionate. A security committee may conduct the cohort-level risk assessment. The officer conducting the scan need not repeat that assessment, but must consider individual matters such as dose, health, ability to stand and other circumstances making exposure disproportionate. Scanning must remain non-random, individually justified, within the approved framework and dose constraints. It engages Article 8, but may be lawful where the rules are accessible and foreseeable and the measure is necessary and proportionate. The judicial review claim failed.

The claimant, a serving prisoner, challenged policies at HMP Wakefield and HMP Berwyn governing cohort use of X-ray body scanners, together with three scans carried out during his transfer between the prisons on 27 June 2025. He argued that the policies were inconsistent with Part 7A of the Justification of Practices Involving Ionising Radiation Regulations 2004, the national policy framework and Article 8 of the European Convention on Human Rights. The central issues were whether cohort identification could satisfy individual justification and proportionality requirements, whether scanning staff had to reassess the underlying concealment risk for each prisoner, and whether the practice was accessible, foreseeable and proportionate.

The judicial review claim was dismissed. The local policies and the three individual scans were lawful.

1. Regulatory framework. Part 7A of the Justification of Practices Involving Ionising Radiation Regulations 2004 required individual exposure to be justified, the imaging practice to be approved and dose constraints to be observed. The national framework reflected those requirements.
2. Cohort scanning. A prison Security Committee could identify a cohort where intelligence or reasonable suspicion indicated internal concealment, there was no effective alternative means of identifying the particular prisoners involved, and scanning was necessary and proportionate for prison security, crime prevention or related purposes. The decision was reviewed monthly and was not random or routine.
3. Individual scans. Individual justification and proportionality did not require the reception officer to repeat the committee’s cohort-level balancing exercise. The officer had to verify cohort membership and consider personal matters such as cumulative dose, health, ability to stand, risks to staff and other circumstances making exposure disproportionate. The officer did not have to reassess the underlying risk by reference to the prisoner’s previous record. The five conditions in the framework were therefore capable of being satisfied through a two-stage decision.
4. Article 8. The scanning engaged Article 8. The rules were sufficiently accessible and foreseeable. Prisoners could raise personal circumstances, but Article 8 did not require a further merits hearing about the underlying cohort risk where the risk could not meaningfully be narrowed to particular prisoners and the process was urgent. Applying the proportionality test in Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, the objective was important, scanning was rationally connected to it, no equally effective less intrusive measure had been identified, and a fair balance was struck.
5. Because the policies were lawful, the separate challenge to the three scans also failed. Obiter, the court would have rejected reliance on section 31(2A) of the Senior Courts Act 1981, while leaving open the position if cohort scanning were impermissible. Costs and the question of permission to appeal were dealt with by agreed order.