NI: High Court finds video-taping strip searches has no basis in law
The High Court has allowed an application for judicial review of the Northern Ireland Prison Service’s policy to video-tape strip searches by force and retain the video for six years, finding that such a policy had no basis in law.
The applicant, Gerard Flannigan is a prisoner at HMP Maghaberry, and on 30 October 2014 was remanded in custody and subjected to a strip search by force, which was video-taped. In accordance with the prison’s policy, this video will be kept for six years.
A Governor at Maghaberry Prison averred that the applicant was a Class A prisoner, housed in the Separated Republican wing, and was engaged in an ongoing campaign to bring an end to full searches.
He further averred that prisoners from the Separated Republican wing had rendered full searches so dangerous that the prison staff’s Article 2 rights under the European Convention on Human Rights (ECHR) were engaged.
In addition, through the prisoners’ false and malicious allegations of physical and sexual assaults against staff, distress was caused to staff which engaged their Article 8 rights under the ECHR.
On the applicant first challenging the making and retaining of video-tapes, the Northern Ireland Prison Service had responded that it was prison service policy “to video record all planned use of force incidents to provide a record that is retained to safeguard both the prisoner and the staff involved where subsequent complaints or allegations are made.”
They averred that the “dignity of any subject is a key consideration and recording does not take place of any images deemed to be inappropriate and unnecessary. The recordings are also made for the prevention and detection of crime and images are retained in compliance with the Data Protection principles.”
The applicant then made an application for judicial review of the policy.
He alleged that the making and retaining of videos breached his rights under Article 3 of the ECHR by interfering with his right not to be subjected to degrading treatment, and his rights under Article 8 by interfering with his right to respect for private and family life.
Further, the policy was ultra vires by virtue of Rule 16(6) of the Prison and Young Offenders’’ Centre Rules (Northern Ireland) 1996, which stated that “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.”
Treacy J considered alleged Article 8 breaches first. He accepted that searches involving the removal of clothing engaged Article 8, but were a justified exception under Article 8(2).
He then found that a video recording of such a search must separately be brought within the exceptions in order to be lawful.
Thus, it must be in accordance with the law, meaning that it should “have some basis in domestic law… be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.’’ .
It was found that the two rules suggested by the respondent as constituting “a basis in domestic law” for the policy of video recording full searches of prisoners were manifestly insufficient to provide such a basis.
The respondent had flagged Rule 116 of the Prison and Young Offenders’ Centre Rules (Northern Ireland) 1996, which refers to the duty of the Governor to be responsible for prisoners’ treatment according to law. However, Treacy J found that it made no provision for video recording.
The respondent had also flagged Rule 48A, which allow for any prisoner to be placed under constant observation by means of an overt closed circuit television system while the prisoner is in a cell or other place in the prison for the purposes of supervision.
However, Treacy J noted that the actual process by which the video-recording was carried out was by human-operated, handheld cameras, and its function was beyond supervision – having instead the character of an active protective / deterrent purpose and effect.
Thus, he concluded that “in the absence of any proper basis in domestic law the recording of the search and its retention and the policy under which it was carried out, are not ‘’in accordance with law’’ and therefore not a justified interference with the Applicant’s Article 8 rights.”
The application for judicial review was therefore allowed.