Neutral Citation No. [2012] NICA 11	Ref:     	GIR8462	
			
Judgment: approved by the Court for handing down	Delivered:	08/05/12	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 ________

ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
 ________

QUEEN’S BENCH DIVISION (JUDICIAL REVIEW)
________

Conway’s (Brendan) Application [2012] NICA 11

IN THE MATTER OF AN APPLICATION BY BRENDAN CONWAY 
FOR JUDICIAL REVIEW
 
AND IN THE MATTER OF AN ADJUDICATION AT HMP MAGHABERRY 
ON 25 OCTOBER 2010
 ________ 

Before: Higgins LJ, Girvan LJ and Coghlin LJ
 _______ 

GIRVAN LJ (giving the judgment of the court)

Introduction

[1]	This is an appeal from judgments of Treacy J given on 5 May and 3 June 2011 in judicial review proceedings brought by the appellant Brendan Conway (“the appellant”).  The appellant sought various reliefs arising out of decisions and actions taken by the Prison Service of Northern Ireland in respect of the policy of routine full body searching of prisoners entering and leaving HMP Maghaberry Prison (“the prison”) where the appellant was at all material times a remand prisoner.

[2]	Mr Macdonald QC and Ms Doherty appeared on behalf of the appellant and Mr Gleenan QC appeared on behalf of the respondent.  The court is indebted to counsel for their full and helpful submissions.

The factual background

[3]	When the appellant instituted proceedings he had been since September 2008 a remand prisoner accommodated at Roe House in the prison.  He was charged with others with kidnapping, assault and false imprisonment, robbery and use of a firearm in connection with the kidnapping.  Pursuant to the regime established following the 2003 Steele Review he was accommodated in the separated regime at Roe House.

[4]	The appellant was one of a number of prisoners who took part in a protest organised by Republican prisoners.  One of the points of contention leading to the protest was the matter of routine full body searching of prisoners entering or leaving the prison.  

[5]	According to his affidavit of 5 November 2010 the appellant was granted temporary compassionate bail to visit his mother between 20 and 23 August 2010.  He refused to be subjected to a full body search when leaving and returning to the prison on 23 August.  On his return he was given a rub down search and searched by metal detector.  He was charged with an offence against prison discipline in respect of his refusal to undergo the full body search on his return to the prison.  

[6]	On 15 September 2010 he was informed that he would be leaving the prison to attend court.  He refused to submit to a full body search.  According to his affidavit he was told that a prisoner had to comply with a request for a full body search; that if he did not he would be given 15 minutes time to reconsider; he would be taken to a special unit (“the SSU”) for a further 15 minutes for reconsideration of his decision following which his clothes would be forcibly removed.  On that occasion he was brought back to his wing and not immediately charged with a breach of prison discipline but he was later charged with an offence against discipline.  That charge was apparently not pursued.

[7]	On 23 September 2010 he was again due to appear at Laganside Courts.  After he was informed that he would be given 15 minutes to reconsider his refusal and then would be taken to the SSU he alleges that at the SSU Governor Ferguson came to see him.  The appellant claimed that an agreement between the Prison Service and prisoners’ representatives had brokered a deal that there would be no strip searching unless intelligence or technology indicated reasons for doing so.  Officers, however, gave him 15 minutes to reconsider his decision.  When he declined to agree to a full body search he was subjected to a strip search.  According to his description of the search he claims to have been subjected to a “horrendous physical and sexual assault”.  He claims that he had been taken to the Punishment Unit and the search team was called.  Using control and restraint techniques he was placed in the C & R position.  He claimed that 5-6 members of the search team were present.  One held his head when he was placed on the ground.  He had his clothes forcibly removed including his underwear.  He was hit on the chest.  He claims to have been sexually assaulted and that his penis was left hanging out over the top of his boxer shorts where it was visible.  When his jeans were forcibly pulled on they were not zipped and buttoned.  When taken to the reception area he claimed that his penis was left visible and since he was handcuffed he could not correct that situation.  

[8]	On his return to prison he refused again to be strip searched.  Prison staff then said that there was no need to conduct the strip search as he had not come into contact with anyone in the course of his journey.  The duty governor indicated that there would be no strip search on that occasion.  He was charged with disobeying a lawful order in respect of his refusal to submit to the earlier search.

[9]	On 30 September 2010 when he was brought to court he refused again to undergo a strip search.  He was given 15 minutes to reflect and then taken to the Punishment Unit.  He avers that he was not fit to undergo a further strip search because of injuries sustained on the previous forcible search on 23 September 2010.  After two hours he was returned to his landing at Roe House, the court visit having been cancelled.  He was charged with the offence of refusing a lawful order.  

[10]	An adjudication in respect of the charges took place on 25 October 2010.  Governor Molloy found him guilty. The total sentence imposed on him was 14 days loss of access to the gym and TV and he also received a caution in respect of the offence on 23 August.  

The evolution of the judicial review application

[11]	In the original formulation of the Order 53 statement the appellant sought an order of certiorari in respect of the adjudication proceedings.  At that stage the appellant sought to rely on an alleged agreement of 12 August 2010 whereby it was alleged that the Prison Service had agreed that full body searching would no longer be carried out on separated prisoners and he claimed to have a legitimate expectation to that effect.  It was alleged that routine full body searching on entering and leaving the prison was disproportionate, contrary to Article 8 and without lawful authority.  

[12]	Following the receipt of the ex parte application for leave the court invited the Prison Service to file evidence on the justification for full body searches of prisoners on entering and leaving prisons in Northern Ireland.  This was done by the filing of an affidavit of Mr Alan Craig, Deputy Director of Operations in the Prison Service.  This affidavit did not address any of the factual averments made by the appellant in relation to the searches to which he was subjected and did not deal with the issue of the adjudication.  The deponent addressed the issue of the need for full body searches and the question whether there was an agreement as alleged.

[13]	The Order 53 statement was amended on 21 December 2010 to extend the relief sought.  The appellant claimed that the policy of routine full body searching of prisoners on entering and leaving the prison was ultra vires Rule 16 of the Prisons and Young Offenders Centre Rules (Northern Ireland) 1995 (“the Prison Rules”); that the policy was incompatible with Article 8 of the ECHR; that the policy of forcible full body searching of prisoners who neither consented to nor resisted such research was unlawful and contrary to Articles 3 and 8.  On 6 January 2011 it was further amended to widen the relief sought.  The final version emerged on 20 January 2010.  This added as a head of relief sought:

“A declaration that the forcible full body search carried out on the applicant on 23 September 2010 was incompatible with his rights pursuant to Articles 3 and/or 8 of the ECHR.”

The appellant sought damages.  By this stage the appellant was no longer seeking to rely on the argument of a legitimate expectation or breach of the alleged agreement.  

[14]	On 12 January 2011 McCloskey J granted leave to the appellant to apply for judicial review.  That leave order accordingly permitted him to pursue the relief sought in the amended Order 53 statement.

The appellant’s challenge

[15]	The appellant challenges, firstly the lawfulness of the adjudication decision of the Governor on 25 October 2010; secondly, the lawfulness of the forcible body search carried out on 23 September 2010; and, thirdly, the lawfulness of the Prison Service’s policy relating to routine full body searching of prisoners entering and leaving the prison, and, fourthly, its policy of forcible full body searches of prisoners who claim to be neither consenting to or resisting a full body search.

[16]	The essence of the appellant’s claim in respect of the adjudication decision is that the charges levelled against him of offending prison discipline and disobeying lawful orders should have been dismissed because the Prison Service had no lawful basis for carrying out full body searches in the circumstances and, accordingly, had no right to require the prisoner to submit to such searches.  This claim relates to the orders arising out of the circumstances set out in the appellant’s affidavit.  In essence, accordingly, the claim relates to the orders made on 23 August 2010 on his return from compassionate bail, on his leaving the prison on 15 September 2010 to attend court, on his leaving the prison on 23 September 2010 and on 30 September 2010 when he was going to leave the prison to go to court on a visit which was cancelled.

[17]	The judgments of Treacy J which are under appeal do not address the lawfulness of the adjudication decision as such nor do they address the issue whether the appellant was subjected to unlawful conduct on 23 September 2010 during the forcible body search.  Although Mr Macdonald sought to argue that this court should uphold his claims on that latter issue since the Prison Service had not challenged the appellant’s affidavit averments, it is clear that the court and the parties were proceeding on the basis of an apparent understanding that the court should deal firstly with the claim for declaratory relief in respect of the impugned policy of routine strip searching of prisoners entering or leaving the prison.  Paragraph 12 of Governor Craig’s second affidavit avers that he had been advised that the court did not at this stage intend to address the specific circumstances of the full searches to which the applicant was subjected.  In the event that it became necessary to address those specific circumstances further affidavit evidence could be filed.  What is clear is that there remain undecided issues in the proceedings which will thus in any event have to be remitted to Treacy J for determination.  

[18]	While we gave careful consideration to the question whether the case should forthwith be remitted to Treacy J to reach a final first instance decision on all the outstanding issues we were persuaded that a consideration at this stage of the issues argued before Treacy J which are the subject of this appeal relating to the declaratory relief sought in respect of the Prison Service policy may assist in the final resolution of the outstanding issues and thus serve a useful purpose.  We decided, accordingly, to proceed to hear the appeal although reserving the power to remit the matter to Treacy J without determination of the appeal if it became apparent in the course of the appeal that that was the better course to follow.  

[19]	In his judgment of 5 May 2011 Treacy J considered that the routine full body searching of prisoners on entering and leaving the prison was lawful, was not ultra vires Rule 16 of the Prison Rules and was not incompatible with Article 8 of the Convention.  He concluded that the policy of forcible full body searching of non-compliant prisoners is lawful and not incompatible with Articles 3 and 8.  In a later judgment of 3 June 2011 the judge addressed the issue of full body searching of prisoners being discharged on acquittal or completion of sentences.  It must be noted that this was not an issue raised in the appellant’s case as such although it raised a question which might later become relevant to the appellant if he was discharged on acquittal or on completion of his sentence.  Although it was strictly an irrelevant issue the judge expressed himself as satisfied that there were compelling reasons and compelling security needs which justify full body searching even prior to final discharge.  

The parties’ submissions

[20]	Mr Macdonald QC contended that the Prison Service pursues an unlawful inflexible policy of conducting routine full body searches of all prisoners entering and leaving the prison.  Because it pursues this routine and inflexible policy it fails to exercise any discretion whether to conduct such a search.  There is no lawful basis for such a policy under Rule 16.  Such a policy is not “in accordance with law” for the purposes of Article 8 and is disproportionate.  The inflexible and routine policy of forcible full body searching of prisoners who neither consent to nor resist such a search is ultra vires Rule 16.  That policy is not in accordance with the law and is disproportionate.  The policy of forcible searching is contrary to Article 3 as to the manner in which such forcible searches are carried out and amounts to inhuman and degrading treatment.  The appellant was justified in refusing to submit to full body searches and the bringing of charges was accordingly an abuse of power since the appellant could not be guilty of disobeying orders which were unlawful.  The inflexibility of the policy rendered it unlawful under domestic law and disproportionate for Convention law purposes.

[21]	Mr McGleenan QC on behalf of the Prison Service contended that the practice of conducting full body searches on entry to and exit from the prison was lawful.  Full searching is necessary as, without it, it would be difficult to uncover a range of prohibited items such as drugs, munitions and firearms, mobile phones or parts thereof.  When prisoners go out and come into the prison there is an opportunity to move contraband across the interface and there is a common need to ensure an effective system to counter and to test such activity.  Rule 16 contains the necessary power.  Rule 16(1) encompasses prisoners passing through the clearing house of outgoing and incoming prisoners.  Rule 16(2) applies to any situation in which there is a contact between the prisoner and those outside the prison.  Counsel relied on R v Secretary of State for the Home Department ex parte Sulfikar [1996] COD 256 to show the lawfulness of a blanket policy.  Counsel rejected the argument that Article 8 was breached by such a policy and called in aid the reasoning and the decision by the European Court of Human Rights which demonstrated the lawfulness of the Prison Service policy in this instance.  A demonstrable lack of proportionality had to be established.  The legislative objective of the routine full body searching policy is the maintenance of good order and discipline.  The requirement of a routine rather than random searching or a risk led policy on entry or exit is connected to that legitimate objective.  The method of implementing full body searches was circumscribed by written policies and procedures which were Convention compliant.  The full body search policy meets the proportionality test and thus the orders directing the appellant to comply were lawfully made.  The argument that the requirement that a full body search was not in accordance with law was misconceived.  Rule 16 provides the legal basis.  Various species of management provisions were clear and accessible in relation to the policy on forcible searches.  The Prison Service has a policy for dealing with prisoners who are non-compliant.  There is no sub-policy for those who neither consent nor resist a search.  The appellant was non-compliant and was subjected to a search in accordance with the policy.  The conduct of a full body search will not reach the threshold of severity required to engage Article 3.  The policy used for searching those who are non-compliant is a procedure only used when all the other options have failed.  

Statutory provisions

[22]	Section 13 of the Prison Act (Northern Ireland) 1953 provides that the relevant department may make rules for (inter alia) the administration, regulation and management of prisons.  The power to do so includes the power to make rules for the discipline and control of persons required to be detained in prisons and to make rules for any other matters which appear to be necessary or expedient for the purpose of carrying the act into effect.  Provision is made in section 34 and section 34A, B and C for the control of the bringing in and out of the prison of articles in lists A, B and C.  These include, for example, controlled drugs, explosives, alcohol, mobile phones, cameras and recording equipment.  Provision is made in section 34C to prevent the taking out of the prison of restricted documents.

[23]	Rule 2 of the Prison Rules sets out the principles with regard to which the rules are made.  Rule 2(1)(c) provides that prisoners shall be held carefully and securely for the protection of the community and in the interests of justice.  The treatment of prisoners should be such as to sustain their self-respect and health and to encourage them and develop a sense of personal responsibility.  Each prisoner should be considered individually and discipline should be maintained at all times with firmness and fairness.  The principles set out in Rule 2(2) are intended as guides to the interpretation and application of the rules.

[24]	Rule 16 provides:-

“(1) 	Every prisoner shall be searched on reception to the prisoner.

(2)	A prisoner may be searched before or following a visit, on any occasion in which the prisoner has come into contact with, or is likely to come into contact with, persons from outside the prison, or when his or her cell or property is searched.

(3)	The search under paragraphs (1) and (2) may include a full search.

(4)	The governor may direct that a prisoner or prisoners be searched at such times as is considered necessary for the safety and security of the prison.

(5)	Where the governor has grounds to believe that a prisoner is in possession of a prohibited or unauthorised article and that item may only be discovered by means of a full search the governor may direct that the prisoner be required to submit to a full search.  

(6)	A prisoner shall not be undressed or required to undress in the sight of another prisoner or any persons other than the officers conducting the search, but a prisoner may be required to remove a hat, coat or overcoat.  Any search for which a prisoner must undress may only be carried out by an officer of the same sex as the prisoner.

(7)	Where a prisoner refuses to cooperate with a search, including a full search, such force as is necessary to affect the search may be used.

(8)	This rule does not permit the search of a body cavity, but a prisoner may be required to open his mouth to permit a visual inspection.

(9)	Under this rule a search of a prisoner may include a search of any prisoner’s cell and property."

The power to carry out a full body search

[25]	Though a prisoner is lawfully deprived of his liberty that loss of liberty does not deprive him of all rights enjoyed by other citizens as Lord Bingham pointed out in R (Daly) v Secretary of State for Home Department [2001] UKHL 26.  Some rights, perhaps in an attenuated and qualified form, survive.  As pointed out by Forest J giving the judgment of the Canadian Supreme Court in Weatherall v Canada [1993] 2 SCR 872, incarceration necessarily entails surveillance, searching and scrutiny and a substantially reduced level of privacy is present in the prison setting.  In that case the court reached the conclusion that a prisoner could not hold a reasonable expectation of privacy under the Canadian Chapter of Rights and Freedoms with respect to the practices of frisk searching, regular scheduled cell patrols and unannounced patrols at random times every hour.  

[26]	However, the carrying out of full body searches is significantly more intrusive as a form of searching than frisk searching.  Full body searching involves the requirement that the prisoner be stripped for the purpose of his body and clothes being searched and examined for the presence of forbidden articles.  If carried out inappropriately without safeguards or arbitrarily the full search may become demeaning and, in some cases, degrading.   In Yankov v Bulgaria No 39084/ECHR 2003-XII the European Court of Human Rights pointed out that the court had held that strip searching, while it may be necessary on occasion  to ensure prison security and prevent disorder and crime, must be conducted in an appropriate manner.  In Van der Ven v Netherlands [2004] 38EHRR 46 the strip searching involved was held to violate Article 3 as the searches were performed systematically on a weekly basis as a matter of practice which lacked justification in the case of the applicant.  As the court pointed out in Re Karen Carson [2005] NIQB 80 policies relating to the circumstances in which a strip search is to be carried out potentially engage both Articles 8 and 3 of the Convention.  A policy relating to strip searching must have a lawful basis and be proportionate.  The searches themselves must be necessary and carried out in a proportionate way and as a proportionate reaction to a relevant mischief.

Discussion

[27]	What is in issue in the appellant’s case is the lawfulness of a Prison Service policy, implemented in practice, of full body searching of all prisoners leaving the prison during their incarceration, for example, when they attend court or are granted compassionate bail or home leave and when a prisoner returns to the prison having left the prison for some such purpose.  In the context of this appellant the relevance of that issue arises in the context of the imposition on him of orders to submit to a full body search on the occasions referred to in his grounding affidavit and whether the adjudication in respect of the breaches of those orders was lawful.

[28]	Mr McGleenan on behalf of the Prison Service accepted that any strip searching policy had to be in accordance with law for the purposes of Article 8.  That involves determining whether:-

(a)	there is in domestic law a legal basis for the carrying out of such a search; and 

(b)	that law is adequately accessible and foreseeable.

On the first issue Mr McGleenan contended that Rule 16 contains the legal basis for the full body searches in these circumstances whereas Mr Macdonald argued that Rule 16 only empowered full body searching, if under Rule 16(5), the governor had grounds to believe that a prisoner was in possession of a prohibited or unauthorised article which could only be discovered by a full body search.  If Mr Macdonald’s construction of Rule 16 is correct routine strip searching of exiting and returning prisoners would not have a legal basis and thus would be unlawful in the absence of grounds for believing that the prisoner had, in fact, unauthorised items in his possession.

[29]	The scheme of Rule 16 is clear.  Where a search is one that must be carried out under Rule 16(1) and may be carried out under Rule 16(2) the search may include a full body search.  If the case does not fall within either Rule 16(1) or (2) the carrying out of a search is only permitted if the search is considered necessary for the safety and security of the prison and such a search can only be a full body search if the governor has grounds for believing that the item may only be discovered by means of a full search under Rule 16(5).

[30]	A prisoner “on reception to prison” must be searched under Rule 16(1).  That search may include a full body search if the discretion to carry out such a search is exercised.  The Prison Service contends that a prisoner returning to prison having been released, for example, on compassionate bail or for home leave passes through the reception in the prison and thus must be searched under Rule 16(1).  The term “reception to prison” is not defined.  In various of the succeeding rules it is clear that the term reception is referring to first entry into the prison system (for example the initial interview with the governor after his reception, the furnishing of information in relation to the requirements of the prison after reception, health screening on the day of his reception, the taking of photographic and fingerprint material on reception.)  In Rule 16(1) the reference to “reception to prison”, rather than reception into the prison points to it referring to reception into the prison system.   We conclude that Rule 16(1) is not aptly drawn to cover the situation of a prisoner simply exiting and returning to prison at a point subsequent to his initial committal to prison when he has been received into the prison system.

[31]	The situations falling within Rule 16(2) can arise [A] where the contact with outsiders occurs within the prison context or [B] where the prisoner has or may come into contact with persons when the prisoner himself is outside the prison.  There is no convincing reason why Rule 16(2) should be construed as being restricted solely to situation [A] as Mr Macdonald contends.  On his argument the only ground on which a full body search could be carried out would be if the governor considered that the prisoner had in his possession a prohibited article following contact with an outsider coming within the prison.  On such an interpretation the prison authority would have less control over prisoners returning from outside the prison from unsupervised contact with outsiders than over a prisoner having contact with somebody in the prison context.  We conclude that on its proper construction Rule 16(2) does aptly cover the searching of prisoners who are likely to come into contact or have come into contact with persons either inside or outside the prison itself.  

[32]	Rule 16(2) provides a clear legal basis for full body searching of prisoners in circumstances falling within the sub-rule.  The powers to search and to carry out a full body search are discretionary powers.  The European Court of Human Rights in Silver v UK [1983] 5 EHRR 347 pointed out that a law which confers a discretionary power must indicate the scope of that discretion.  The court recognised the impossibility of attaining absolute certainty in the framing of laws and the search for absolute certainty may entail excessive rigidity.  It would be scarcely possible to formulate a law to cover every eventuality.  As pointed out by that court in Sunday Times v United Kingdom [1979] 2 EHRR 245 at paragraph (49):- 

“Many laws are inevitably couched in terms which to a greater or lesser extent are vague and whose interpretation and application are questions of practice.”  

In Silver the court considered a prison’s practice in relation to the control of prisoners’ correspondence.  It rejected the applicant’s contention that the conditions and procedures governing interference with correspondence including directives set out in Prison Orders and Instructions should be contained in the substantive law itself.  In that instance the Orders and Instructions which had to be followed, save in exceptional circumstances, established a general practice and the Directives although they did not have the force of law were to be taken into account in assessing whether the requirement of foreseeability was satisfied.

[33]	Before Treacy J it was not in issue that there was in place a policy of which the appellant was aware that full body searching was carried out routinely of prisoners entering and leaving the prison.  Mr McGleenan in his helpful speaking note identified a number of documents which he argued formulated the policy with sufficient precision (a letter of 12 November 2010, a notice to prisoners, a letter of 8 February 2011, a letter of 11 February 2011 with an extract from the governor’s order, a letter of 8 February from the Prison Service to the appellant’s solicitors, the Prison Service website, the prisoner’s induction booklet and the human rights analysis prepared by the Prison Service and an extract from the Security Manual.)  The appellant in his affidavits recognised the existence of a policy of full body searching in the circumstances of a prisoner entering and leaving the prison and recognised that that was the practice of the Prison Service applied routinely.

[34]	The Prison Service asserted that a general policy of full body searching in such circumstances was compatible with the Convention rights of the appellant.  They assert that such a general policy seeks to achieve a legitimate aim and is necessary in a democratic society.  The judge concluded that the Prison Service had shown compelling justification for the maintenance of such searches evidenced by the Prison Service 2005 Human Rights Analysis.  The policy was analogous to that applied in other parts of the United Kingdom.  In fact, Prison Service practice in Northern Ireland is less intrusive than that followed elsewhere where squatting and mirror searching are authorised and where, on occasion, a prisoner will be required to be fully naked.  Technological advances have not obviated the need for such searches.  The judge concluded that such searches were proportionately justified on compelling grounds of security though the respondent must keep the issue under review.     

[35]	In R v Secretary of State for Home Department ex parte Zulfikar (The Times 26 July 1995) before a Divisional Court (Stuart-Smith LJ and Butterfield J) the applicant challenged the policy of general strip searching applied at HMP Franklin on the ground that the conduct and the policy were Wednesbury unreasonable.  The court accepted the need for a general strip searching policy and accepted the reasonableness of the Prison Service’s view that there was a need for 100% rather than partial random inclusion of prisoners in strip searching following visits.  A policy of selectivity would lead to unrest among prisoners.  The policy avoided invidious distinctions.  Butterfield J considered that as far as searching policy is concerned the governor would be in the best position to make a judgment on the procedure he needed to have in place.  The procedures need to preserve security in the prison and eliminate smuggling of prohibited items.  The governor’s authority should not be susceptible to challenge except in exceptional circumstances.  

[36]	That decision predated the Human Rights Act 1998.  The test to be applied now is that of proportionality and not mere rationality but in considering proportionality it is legitimate to give weight to the reasoning of the decision-maker who introduces the relevant policy.  The reasonableness of a policy and the legitimate justifications of that policy are highly relevant to the question of its proportionality.  Particular weight must be given to the judgment of the prison authorities charged with the maintenance of security and safety in the prison context for the reasons adumbrated by Butterfield J.  Whether the policy is proportionate and proportionately applied is a question of fact to be determined by the court in the event of an allegation of disproportionality.  A policy which precludes a decision-maker from departing in any circumstances from the policy or from taking into account special circumstances which are relevant to a particular case in relation to which the discretion is to be exercised would be an unlawful policy on the application of ordinary common law principles (the De Smyth, Woolf and Jowell Judicial Review on Administrative Action 5th Edition at page 506 et seq paragraphs 11.004 et seq and  R v Home Secretary (ex parte Venables) [1998] AC 407.  The absence of any degree of flexibility in such a policy could itself point to disproportionality if the policy is applied inflexibly.  Subject to the issue of inflexibility we conclude that the general policy was proportionate.  It is in accordance with law and has been shown to be necessary for protection of the rights and freedoms of others and the prevention of crime.  It is aimed at achieving a legitimate end in a balanced way and would satisfy the demands of proportionality if it admitted flexibility to cater for special circumstances. 

[37]	Mr Macdonald relies on the argument that it is so inflexible as to be disproportionate and unlawful and being an unlawful policy the decision-makers who imposed the orders to submit to full body searching reached legally flawed decisions having taken account of that unlawful policy.  This thus raises the question whether the full body search policy in question admits of no flexibility and is thus an unlawful and disproportionate policy.  

[38]	Two competing issues come into play in decision-making in respect of how a statutory discretion should be exercised - the need for consistency and the need to ensure that the discretion remains unfettered to deal with special circumstances.  Unfettered by any general policy prison officers making ad hoc search decisions on inconsistent grounds and having regard to their own personal views would be following an arbitrary practice with a real risk of some prison officers appearing to unfairly favour some prisoners as against others.  This would have serious implications for prison discipline.  The risk of arbitrariness in practices impacting on Convention rights would call into question the proportionality of the practices adopted.  A general policy seeking to achieve the desirable aim of consistency and equality of treatment is particularly important in the context of prison life where there is a pressing need for such consistency and equality of treatment as between prisoners.  But the aim of consistency cannot totally destroy the possibility that in special and, no doubt, very limited circumstances the application of the general policy may result in a disproportionate outcome and that some degree of flexibility must thus exist.

[39]	In R v Nottingham City Council ex parte Howitt (Hamilton) [1999] CO-4028-1998 Dyson J put the law thus:-

“A public authority may not impose a fetter on the exercise of its discretion.  It may however have a general policy but only if it is subject to exceptions for exceptional cases – see, for example, R v Secretary of State for the Home Department ex parte Venables [1997] 3 WLR 23, 47c-48c and Eastleigh Borough Council v Betts [1983] 2 AC 613.  The question for the court is not whether the authority has an absolute policy on paper but whether it operates a fettered policy in fact:  per Judge J in R v London Borough of Harrow ex parte Collymore [1995] ELR 217, 227 when approving some comments in the then current edition of De Smyth’s Judicial Review of Administrative Action:

`A course of conduct involving the consistent rejection of applications belonging to a particular cast may justify an inference that a competent authority has adopted an unavowed rule to refuse all’.”

[40]	This aspect of the case is not analysed by the judge who has not found that the policy was in practice applied in an entirely inflexible way.  This is no doubt because of the somewhat unsatisfactory way in which the legality of the policy was considered in the abstract and in general terms without a proper focus on the actual facts behind the application.  The court has not reached any conclusions on the question whether the policy was so inflexible that it was an unlawful policy.  In fact, it appears that the Prison Service decided on 23 August 2010 on the appellant’s return to prison not to subject him to a strip search because he had not left the prison van or come into contact with third parties.  This appears to have been a decision to disapply the policy because of those exceptional circumstances.  

[41]	It will be necessary for the judge to consider the question whether there was in fact total inflexibility on the part of the Prison Service in the application of the policy.  If that were established the policy would be unlawful and disproportionate since it would preclude the exercise of any discretion to disapply the policy in any circumstances even when the dictates of proportionality might require it not to be applied in given situations.

[42]	If the policy is not unlawful (it not being demonstrated that the Prison Service would refuse to take account of any exceptional circumstances), it is a question of fact whether the application of that otherwise lawful policy in the circumstances produced a disproportionate outcome in relation to the various impugned orders to submit to a full body search imposed on the appellant.  It might, for example, be argued on the facts that the policy produced a disproportionate decision on 30 September 2010 when the appellant was required to undergo a body search at a time when it is alleged he was medically unfit.  Whether that is so or not is a question of fact which would require consideration and determination by the judge.  

[43]	The appellant’s allegations in relation to the way in which he was searched on 23 August 2010 raise questions of fact which require consideration by the court.  It must be a matter for the trial judge to determine whether those are matters what can be conveniently dealt with in the existing judicial review proceedings or should more properly be dealt with by separate civil proceedings.  The issue whether in the particular circumstances of what happened on 23 August in respect of the forcible search of the appellant the Prison Service acted in an excessive and disproportionate way is fact dependent.  It is unnecessary to determine as an academic question whether a routine forcible search policy is proportionate.  Whether a particular forcible search is or is not proportionate cannot be answered in the abstract by considering the question in a context divorced from the particular circumstances of a particular search.  The true question is whether this search of this prisoner breached his Convention rights or amounted to an excessive use of force to warrant a finding of illegal conduct.   

[44]	Accordingly, we conclude that the matter must be remitted to the judge for determination of the unresolved and outstanding issues raised in the case which fall to be determined in the light of the judgment of this court.