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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> LD & Ors, R. (On the Application Of) v Secretary of State for Justice [2014] EWHC 3517 (Admin) (17 July 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/3517.html Cite as: [2014] EWHC 3517 (Admin), [2014] WLR(D) 333

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		17 July 2014

1. MR JUSTICE COLLINS: There are three claims before the court by prisoners who at the relevant time were held at HMP Send and who contend that they were unlawfully strip-searched. Two, BK and RH, were searched on 28 February 2013 following the indication by a dog trained to react to drugs, and perhaps alcohol, outside their respective cells following a wing search. This had resulted, according to what is set out in the grounds served in opposition to the claims, from the knowledge that a dishonest prison officer had smuggled alcohol and other prohibited items into the prison. JT was searched on 5 April 2013 as a result of information, which she disputes, that she had been dealing in drugs.
2. At the outset of the hearing we had to consider an application made on behalf of the claimants, first to amend the grounds and, secondly, to debar the defendant from defending because of failures to comply with various orders made in relation to service of evidence and acknowledgement of service. So far as the former is concerned, nothing really turned on that and we will give such relief as we consider to be appropriate on the basis of the material that is before us.
3. So far as the latter, that is the application to debar is concerned, we accept that it can apply in public law cases but, generally, that will be the case only where the claim involves an individual who has, it is said, been unlawfully treated by a particular decision or action of a public body. But where, as here, there is an attack on a policy, or the judgment of the court is intended to deal with a matter which could have a wide effect, then in my view it would be exceedingly rare that to debar would be appropriate.
4. I have learnt not to say never, but it seems to me that in a case such as that, never would almost certainly be appropriate. The reason is obvious. If it is to have a wide effect, it is necessary that the court is in a position to have considered all the arguments and all necessary evidence to support whatever action or policy is in issue before reaching its decision. If it does not, then its decision will carry far less weight and it will always be open to another to say, that that court did not consider the arguments in full and therefore its decision can be reconsidered. That is not a satisfactory state of affairs.
5. Despite what are recognised to be serious failures to meet the terms of court orders - and the excuses put forward are not in the least satisfactory - nonetheless, it cannot be said that there has been any prejudice to the claimants in the arguments that they have been able to put forward. Accordingly, we rejected the application to debar.
6. The power to search is conferred by Rule 41 of the Prison Rules 1991. It reads, under the heading, "Search":

"(1) Every prisoner shall be searched when taken into custody by an officer, on his reception into a prison and subsequently as the governor thinks necessary or as the Secretary of State may direct.

(2) A prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed.

(3) No prisoner shall be stripped and searched in the sight of another prisoner or in the sight of a person of the opposite sex."

The only other rule in the Prison Rules which may be of some possible materiality is Rule 10 which deals with information to prisoners and provides, by subparagraph (1):

"(1) Every prisoner shall be provided, as soon us possible after his reception into prison, and in any case within 24 hours, with information in writing about those provisions of these Rules and other matters which it is necessary that he should know, including earnings and privileges, and the proper means of making requests and complaints."

7. The power conferred by Rule 41 is of course necessary because, without it, any search, and particularly a strip-search, would constitute an assault. But the Rule does not, save as provided in subparagraphs (2) and (3), deal with the circumstances in which strip-searches should be permitted or how they should be carried out so as to avoid any breach of human rights and, incidentally, to ensure that they conform to the requirement in subparagraph (2) that the search is in as seemly a manner as is consistent with discovering anything concealed.
8. Subparagraph (3) covers an aspect which the European Court of Human Rights dealt with and found to be degrading, where a strip-search was carried out in the presence of an officer of the opposite sex. That was said by the court to constitute a breach of Article 3 because it was degrading. But it has been recognised, and the defendant has accepted, that a search constitutes an interference with the private rights and so falls within the scope of Article 8 of the European Convention on Human Rights.
9. It was recognised that the impact of strip-searches was far greater on women than men. A very high proportion of women sentenced to imprisonment had suffered, whether as a child or an adult, sexual, physical or mental abuse. Generally, women felt more keenly the humiliation of being strip-searched than men. The Prison Service accordingly asked Baroness Corston to investigate and report on the matter. She produced in 2007 a lengthy and detailed report. It is to be noted that she described the effect of strip-searches on women as "... humiliating, degrading and undignified, a dreadful invasion of privacy".
10. As a result, and having accepted her conclusions, the Prison Service have issued instructions, the latest of which is PSI 67/2011. This policy is intended to ensure that if strip-searches are carried out in accordance with it, there will be no breach of human rights in particular of Article 8. In each of these cases the defendant has accepted that the instruction was breached and so the searches were unlawful. No evidence has been produced to dispute the statements from the three claimants. Accordingly, we must deal with the claims on the evidence that is before us. Two of the claimants, BK and RH, have issued claims for damages in the County Court. It will be for the judge deciding those claims to go into the facts so far as necessary, nothing we say in this judgment can influence his findings of fact on whatever evidence is produced before him.
11. Miss Mountfield sought to persuade us to make declarations containing more than that the searches were unlawful. She wanted details in the declarations, not only why they were unlawful, but how serious they were. That is not an appropriate form of remedy. The declarations will be that the searches were unlawful. The judgment of the court will indicate the reasons for that conclusion having been reached.
12. Since the unlawfulness of each search has been conceded, we have had to consider only Miss Mountfield's contention that the instruction is itself unlawful because, incompatible with Article 3 or 8, it being not sufficiently clear or able to avoid the risk of breaches of either of those Articles. In particular, she submits, it does not require as it should that reasons be given to the prisoner why she is being searched.
13. So far as material, the policy contains the following. As is expected, as a result of Baroness Corston's report, it distinguishes between the circumstances in which searches of males and females should be carried out. It is noted in paragraph 2.21:

" Staff should be aware that searches, especially full searches, can be embarrassing and difficult experiences for prisoners. Staff must, in particular, bear in mind the impact searches may have on prisoners who may be at risk - see PSO 2700, Suicide Prevention and Self-Harm Management."

14. Miss Mountfield attacks that as being insufficient to indicate or draw attention to the need to take particular care in searches of vulnerable prisoners. We will come to that later. Women prisoners are specifically dealt with in paragraph 2.39. This provides:

"Women prisoners must not be full-searched as a matter of routine but only on intelligence or reasonable suspicion that an item is being concealed on the person which may be revealed by the search. Full searches must be conducted in accordance with the correct procedures, at Annex B, paragraph 23. The procedure for searching women prisoners is different to that used to search men and women visitors and staff (as set out at Annex B), and consists of two levels. Level 1 involves the removal of the woman's clothing apart from her underwear; level 2 involves the removal of all of the woman's clothing including her underwear - Annex B, paragraph 23. Level 2 of the search must only be applied if there is intelligence or suspicion that the woman has concealed an item in her underwear or if illicit items have been discovered about the woman's person during level 1 of the search."

That is the important indication of the limitations that apply to the strip-searching of women prisoners and, as will become apparent, its terms were seriously breached in the way in which the searches were carried out in this case.

15. There is a requirement that a person must at no time be completely naked during a full search. There is an allegation that will become clear in the case of LD that that was breached, although it may be that there is a factual issue in due course about that.
16. Then, in dealing with the full search of female prisoners, in paragraph 23 of annex B, the role of officers involved is set out. The introduction refers to levels 1 and 2, to which reference has already been made. An officer 1 is required, as officer in charge of the search, to be responsible for controlling the search. This is said:

"She will normally observe the subject from the front. She should explain the need for the search and each step, taking into account any cultural or religious sensitivity."

That is criticised, as we shall see, by Miss Mountfield as being insufficient to indicate that reasons have to be given for the search.

17. So far as the individual searches are concerned, it is not necessary to go into great detail. BK states that she has never been involved in any way in drugs insofar as she is aware; there has never been any suggestion that she has. She is serving an indeterminate sentence for public protection for an offence of manslaughter, but with a low tariff of just under two years. That expired in October 2009. She has mental health issues which means she is subject to the care programme approach and, indeed, there is produced a psychiatric report which antedates the search in question which shows, quite clearly, that it should have been appreciated that she was a vulnerable prisoner.
18. She says that on the morning of 28 February, the two officers came to her room, closed the door, said they had to strip-search her and also had to search the room. She asked why, but the only information she received was that the searches were targeted. She was subjected to a level 2 search. Nothing was found and she says the officer said they were surprised that her name had come up. She was very badly affected by the search. She says that she had as a result regular suicidal thoughts. She was constantly depressed and it had seriously affected her, having regard to her mental providence.
19. RH was searched on the same day and as a result of the same action by the dog. I am not quite sure whether the correct indication is that it was a drugs dog. The dog's name appears to have been Archie. RH says in her statement that she was serving a life sentence having been sentenced in May 2007, but in custody since 2006. She had never previously had to undergo a full body search and was an enhanced prisoner. As far as she was aware there were no negative indications against her in her record. She had never used drugs or alcohol. In the morning she was called back from work, told she was being targeted for a full body search. She was in fact menstruating but, nonetheless, a level 2 search was carried out. She felt totally humiliated by what had happened and she, too, was a vulnerable prisoner because she was the subject of what is described as a member of a therapeutic community at the prison and there was a need in her case to address her psychological and emotional state. Again, so far as she is concerned, the search had, she says, a seriously adverse effect on her.
20. LD was in her cell, in bed with the lights off, during the evening of 5 April. Her door was unlocked by two officers who entered her cell and told her that she was to be searched. In fact she complains that the door was left partly open and there was a male officer outside, although when she pointed that out he moved out of sight. She was, she says, subjected to a level 2 search and at one stage was completely naked. She had never been involved in drugs at the prison, albeit it seems as we have indicated that there was intelligence which was acted upon that she indeed had. She says that she felt scared, degraded and humiliated and she, too, was given no reasons why the search had taken place.
21. At HMP Send there was a requirement that a form be filled in following a strip-search which is known as a form F78. This contained a box which is headed "Reason for Search" but, since there is a very small space beneath and the form in question simply says "alcohol/drugs" it is plain that there is nothing in the form which gives a space for an indication as to why the search was decided on and so was carried out.
22. It is most unfortunate that, in the case of both BK and RH, that form is filled out to state that the searches were only at level 1 and not at level 2. Indeed, initially, the case put on behalf of the defendant, and confirmed in RH's case by a report following her complaint from the head of security at HMP Send, was that the search was a routine event and all prisoners were subject to such searches. It was simply it was said because the drug dog showed interest. But, as we say, it is to say the least unfortunate that there was that indication in the F78 reports, but it also was apparently supported originally by the head of security. However, that is no longer relied on.
23. It is clear from what we have set out that there were a series of breaches of the requirements of the instruction. First, there was no indication from the drugs dog action outside the cell that could possibly be said to justify a reasonable suspicion that there were drugs on the person of the individual prisoner. That is particularly the case in relation to RH because she was not even in the cell when the dog reacted. Accordingly, it is difficult to see how it could, from that, be said that it was necessary to search her.
24. Secondly, if but only if, there is a reasonable suspicion or intelligence that there are or may be contraband material, in this case, drugs, in her possession should a breach of the person be carried out. Then it is necessary for level 1 to be completed and only go on to level 2 if anything is found during the level 1 search or there is, again, reasonable suspicion that there is something concealed under the underclothes, the knickers or the bra of the individual prisoner. That was not properly carried out.
25. Finally, it is necessary in our judgment and indeed it is conceded on behalf of the defendant, that there is a requirement to give reasons for the carrying out of the search in question. That was not done. It is quite insufficient to amount to reasons simply to say, you have been targeted. At the very least it would be necessary in the case of BK and RH to indicate that the drugs dog had shown that there was likely to be some drugs or perhaps alcohol in the cell. The search, not having found it in the cell, entitled them to go on to the search of the person. Of course they did not carry out the search of the cell in advance.
26. It is all the more surprising that these breaches occurred because it is said that there is training of all prison officers so that they can comply with the instruction. All one can say is that either the training at HMP Send was grossly deficient, or there was a deliberate failure to comply with what was required. We can only hope it was the former as opposed to the latter.
27. So far as the policy is concerned, the contention on behalf of the claimants is that there are a number of deficiencies in it. The correct approach when considering instructions or policies such as this is to be found perhaps most helpfully in the decision of the House of Lords in R (Gillan) v Commissioner of Police of the Metropolis [2006] 2 AC 307. In that case, Lord Bingham, at paragraphs 31 to 34 considered what was required for lawfulness within the convention and at paragraph 34 he said this:

"34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided.

35. The stop and search regime under review does in my opinion meet that test. The 2000 Act informs the public that these powers are, if duly authorised and confirmed, available. It defines and limits the powers with considerable precision. Code A, a public document, describes the procedure in detail. The Act and the Code do not require the fact or the details of any authorisation to be publicised in any way, even retrospectively, but I doubt if they are to be regarded as "law" rather than as a procedure for bringing the law into potential effect. In any event, it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively."

28. It is true that the European Court of Justice decided that the provisions in question did not satisfactorily meet the appropriate test but it did not challenge the test itself which was set out essentially in paragraph 34.
29. We have no doubt that reasons should be given. Miss Mountfield, as we have said, contends that what is contained in the instruction is insufficient. That is the indication that the officer in charge should explain the need for the search and each step. It seems to us that it is clear, as a matter of sensible construction of what is said, and putting us in the place of a reasonable reader, that it does indicate that the prisoner must be told why the search is being carried out. Why was there a need for the search? The answer must be, whatever is appropriate in a given case. That it was a targeted search is clearly insufficient. That it was a search based upon intelligence is equally prima facie insufficient. I say prima facie in that context because it is possible, no doubt, that in an intelligence case there are problems, or may be problems, in giving very full information in order to protect the source of that intelligence. But, surely it is possible in every case to say we have information which tells us that you have been doing whatever it may be, or that you may have drugs in your possession. That at the very least should be given.
30. We have referred to Rule 10 of the Prison Rules. In our view, consideration should clearly be given as to whether some information about when searches can take place of a particular nature is something that ought to be given to a prisoner. We note that Nacro, when asked to comment on the question of searches, did make this very point, that prisoners ought to be made aware of the circumstances in which strip-searches could properly take place. We would underline that and suggest that it is appropriate and consideration should clearly be given to providing the prisoner with that advance information. But that does not preclude the necessity to give reasons, however short, for a search in any given case. We do not believe that the instruction is so deficient in the respect submitted by Miss Mountfield as to be unlawful.
31. The need to search in order to avoid contraband coming into prisons is all too obvious. The suggestion made by Miss Mountfield that the instruction was not rationally connected with keeping contraband out of prison seems to us to be utterly unarguable; it clearly is. The other matter that she particularly relies on is that there was a failure to consider properly vulnerability, and to draw to the attention of prison officers the need to avoid searches or rather the need to take account of a prisoner's vulnerability in deciding whether a search should take place. There is no question but that an officer is required to consider the particular circumstances of an individual and there is reference, as we have already said, to the Prison Office circular that deals with suicide and mental problems.
32. Miss Mountfield complains that it does not specifically spell out as it should that that is a matter which should be considered in advance. Again, we take the view that any sensible reading of the instruction simply does not support that argument. Of course we accept that strip-searches can result in degrading treatment, which can breach Article 3. No doubt, if carried out in a thoroughly abusive fashion contrary to the instruction or if, for example, in the presence of an officer of another sex then, indeed, it would be a breach of Article 3. But there is nothing in this instruction which, in our judgment, could lead to a real risk that that breach might occur, provided that searches are carried out in conformity with it.
33. In our judgment, the same applies to Article 8. Again, there is a risk that a strip-search looked at in isolation can breach Article 8. But the purpose of it is a proper one, namely to ensure that contraband does not come into prisons and, again, provided that it is carried out in a manner which is in conformity with the policy there is, in our view, no possible breach of Article 8.
34. It follows therefore that the only relief that we will give relates to the individual searches which we will declare, having been conceded, and for the reasons that we have enlarged upon in this judgment to be unlawful. So far as the attack on the policy is concerned, that we reject.
35. MR DEAKIN: Grateful, my Lord. Two minor points arising from that judgment. You mentioned that cell searches should always be carried out in advance of strip-searches. Am I to take that to mean, in these particular cases, the cell-searches should have been carried out first.
36. MR JUSTICE COLLINS: I am wrong, am I?
37. MR DEAKIN: It's just that strip-searches may take place when there's no cell search at all.
38. MR JUSTICE COLLINS: You are quite right, I will amend that when the transcript comes.
39. MR DEAKIN: I am grateful, my Lord. The second point is the matter of costs. The Secretary of State would ask for his costs in this case subject to this caveat, that the claimants were successful on the Article 8 grounds up to the point at which the Secretary of State conceded it. What we would say is that the appropriate costs award should be: the claimant has the costs of the Article 8 ground up until the Secretary of State's acknowledgement of service and the other costs which follow from this being the Secretary of State's.
40. I expect Miss Mountfield is going to resist that and suggest that the Secretary of State's behaviour in this case warrants an adverse costs award. I don't know whether it would be appropriate for me to briefly address you on why I would suggest that wouldn't be something which this court ought to --
41. LADY JUSTICE RAFFERTY: First of all, let us find out if she is.
42. MISS MOUNTFIELD: Well, my Lord and my Lady, if this had been a case where the Secretary of State hadn't conceded to the first ground, I would have invited you to award 50 per cent of my costs.
43. MR JUSTICE COLLINS: When was the concession? At what stage? You have put in a chronology somewhere, have you not.
44. MISS MOUNTFIELD: I need to look at my chronology, my Lord. We were served with grounds of resistance on 20 December 2013. They were actually dated the 17th but we were served with them on the 20th. The acknowledgement of service in the first two cases were 14 October 2013, which you will see on page 2 of the chronology, three items from the bottom. Then permission was granted by Jay J and then the LT grounds of resistance were 20 December.
45. MR JUSTICE COLLINS: Yes. The concession in BK and RH was confirmed, was it, on 20 December?
46. MISS MOUNTFIELD: No, on 14 October the defendant served acknowledgements of service in BK and RH.
47. MR JUSTICE COLLINS: Remind me, did those acknowledgements concede the --
48. MISS MOUNTFIELD: They did and (Inaudible) by e-mail, you can see this at the bottom of the chronology, what is the basis of that concession? There's just no answer.
49. MR JUSTICE COLLINS: In the case of BK and RH, you would say, as a starting point, that you should have your costs up until at least that date. I am not tying you to anything but just seeing where we start.
50. MISS MOUNTFIELD: On the Secretary of State's approach, the Secretary of State concedes we ought to have our costs up until that date.
51. MR JUSTICE COLLINS: In LT, insofar as they refer the costs in that case, until the concession in her case.
52. MISS MOUNTFIELD: On 20 December.
53. MR JUSTICE COLLINS: Which is 20 December.
54. MISS MOUNTFIELD: That much is common ground. If the Secretary of State says, we ought to have our costs up until then, and after that I should have my costs. I think that's right. If there hadn't been that concession I would have said I would (Inaudible) half the issues and that would be the right exercise of discretion. But I do, as Mr Deakin correctly anticipates, invite you to exercise your discretion as to costs in the manner structured in CPR Rule 44.2. I think in the White Book it is 1,385, volume 1. This is I am afraid a point when I am teaching grandmother and grandfather to suck eggs, but the general discretion as to costs set out in 44.21.
55. MR JUSTICE COLLINS: Yes.
56. MISS MOUNTFIELD: Then, at the bottom of the page, in deciding what order if any to make about costs, the court will have regard to you all circumstances, including the conduct of the parties and the conduct of the parties' conduct before during the proceedings and, in particular, the extent to which the parties have followed pre-action protocols.
57. MR JUSTICE COLLINS: Yes. In the old days, you simply --
58. MISS MOUNTFIELD: Yes, general discretion but it's structured and, in particular, it says, the manner in which a party has pursued or defended its case.
59. MR JUSTICE COLLINS: Yes.
60. MISS MOUNTFIELD: That is obviously relevant to the discretion as to costs and as I indicated this morning it took 24 different interactions to obtain the defendant's evidence that ought to have been served 35 days after the grant of permission by Jay J. At that point, one might say it is the case that it was my team's duty to reconsider its case and consider whether, in the light of that evidence, the policy's challenge still stood. Up until that date it was reasonable for us in the light of what Jay J had said to say, yes, it appears there's a problem here. That is one perception.
61. MR JUSTICE COLLINS: I think it is not unreasonable to see whether they had any explanation as to the reasons why the breaches, or suggestion that they weren't as bad as they appeared to be.
62. MISS MOUNTFIELD: Yes, and indeed, part of the evidence is what Miss Prince(?) said about, see this in context, see it in the context of the training, and the way she says this policy ought to be read, which didn't fit with the way we perceive what constituted --
63. MR JUSTICE COLLINS: Does it mean that what you are effectively trying to persuade us to do is give you your costs up until reasonable time for consideration after the service of Miss Prince's statement.
64. MISS MOUNTFIELD: Yes, my Lord. I would say that was 21 days after service of Miss Prince's statement, which was, I think, served on 17 April. After an agreed date for service had gone, and on 7 April, Treasury Solicitor had written asking for an extension until 9 April. The 9 April came and went and still no statement. We got it on the 17th. I am not sure, I think it does slightly affect how long I ask for because if he is to fall within that 14 days I think he is just trying to find out. Reasonable even for lawyers to be on holiday even at Easter.
65. MR JUSTICE COLLINS: Some judges have to be available over Easter.
66. MISS MOUNTFIELD: Easter was 20 April, my Lord, so I would ask for 21 days from 20 April.
67. MR JUSTICE COLLINS: You obviously need some time.
68. MISS MOUNTFIELD: Yes. I would invite you that the correct answer is that the claimants receive all their costs occasioned by this application, obviously to be assessed if not agreed, for three weeks from 20 April 2014. Somebody will shout out when that is because I can't work it out. But after that date, then the defendant seeks to undo that by saying that they wish to have their costs against you, not to be enforced.
69. MR JUSTICE COLLINS: Are you legally aided?
70. MISS MOUNTFIELD: We are, yes.
71. MR JUSTICE COLLINS: All three. It's all a bit academic, Mr Deakin, isn't it?
72. MISS MOUNTFIELD: It might be academic, but it may affect what happens to any damages were there to be a damages settlement.
73. MR JUSTICE COLLINS: Of course, it may make the damages claim --
74. MISS MOUNTFIELD: It would make the damages claim a little unfortunate. My submission, my Lord, taking a realistic view is that after that costs should lie where they fall. Because otherwise any damages, there ought to be either a settlement or a damages claim in these cases, and would be rendered neutral. We did do the exercise I have talked about. We considered to regard there on the basis of our reading of Gillen and other cases as an error. I accepted that view which (Inaudible) looked at the evidence and has not found favour with the court but it is not something which ought to have (Inaudible) on the claimants personally if they were subjected on the last two unlawful strip-searches. So that's the order I would invite. We would invite the court to order that we get our costs to be assessed, if not agreed, up to and including 22 May and that, thereafter, there be no order as to costs.
75. MR JUSTICE COLLINS: Yes.
76. LADY JUSTICE RAFFERTY: Yes, Mr Deakin.
77. MR DEAKIN: If I may resist that for these reasons. Firstly, when the claimants brought their claim, it was originally brought on the basis of a challenge to individuals, a challenge to policy and also there was a public sector equality duty ground. That public sector equality duty ground dropped and it was dropped after the Secretary of State had done the work and responded to it in some detail. Secondly, the claimant (Inaudible) that needed to be raised and addressed by the Secretary of State, that was dropped and costs were incurred as a result of that. Thirdly, there was no requirement to the Secretary of State to serve any evidence at all.
78. MR JUSTICE COLLINS: No, but you said you were going to.
79. MR DEAKIN: Yes, we did say that we were going to, but the argument of the Secretary of State --
80. MR JUSTICE COLLINS: And then you broke orders of the court in not doing it when you should have done.
81. MR DEAKIN: There was a consent order which suggested that we would serve it by 2 April. The Secretary of State applied on 7 April for an extension.
82. LADY JUSTICE RAFFERTY: On the 29th, and nothing happened.
83. MR DEAKIN: And we were in default of that. That's entirely correct. It may well be that this court sets its face against the Secretary of State's behaviour. There is no doubt that there have been delays in this matter, then takes the view that there ought to be a costs penalty. There is also no doubt that the discretion that this court has is extremely broad when it comes to assessing costs.
84. But in order to exercise that discretion, in my submission, the starting point must be costs follow the event. The claimant won on their Article 8 ground and they have known that they won their Article 8 ground since at least the order of Jay J. They couldn't get anything else from his order, there was nothing else they could recover. They weren't asking for just satisfaction.
85. LADY JUSTICE RAFFERTY: 5 November 2013.
86. MR DEAKIN: Yes, my Lady. They weren't asking for just satisfaction, they weren't asking for damages. Jay J, from that point, it was clear to them, all three actually because he granted permission in the Thomas case and recognised what the likely order was going to be. So from that date the claimants got everything which they had succeeded in getting from this judicial review.
87. It is true that we said we were going to serve evidence, and that was Miss Prince's evidence in her statement, and it is true that we served that evidence. We were not required to serve that evidence, we were not required to ask for relief from sanctions from serving that evidence. It was of course open to this court to refuse the application or indeed to refuse to hear that evidence. This court, and I am grateful to this court, did hear it. It may well have been that that evidence caused prejudice to the other side and, in those circumstances, the court may well set its face against the costs awarded that I am seeking, but it didn't. The claimants have had that evidence for over three months and for them to now seek a windfall on costs such that they get all their costs up until the date of Miss Prince's evidence, I would suggest to you, it is inappropriate. The claimant's other default that they rely most heavily on is the failure to serve an acknowledgement of service. My Lord, that default has been dealt with. That was dealt with by Jay J and it would be inappropriate in my submission for this court then to factor into its assessment and its discretion of costs the behaviour of the Secretary of State. The order previous to Jay J mentioned the potential order of costs.
88. LADY JUSTICE RAFFERTY: Is that Davies J?
89. MR DEAKIN: Yes.
90. MR JUSTICE COLLINS: The failure to serve an acknowledgement of service carries its own possible remedy within 52, doesn't it?
91. MR DEAKIN: Not in these circumstances, my Lord. What 54(8) says is you have to serve an acknowledgement of service. 54(9) says that if you do not serve an acknowledgement of service, you may not be entitled to appear at the permission stage. It then goes on to say that, provided you then comply with 54(14), there's no difficulty. Jay J waived the requirement for detailed grounds in all cases which means there was no default, there was no requirement for an application for relief from sanctions and there was no default. There is no doubt that the Secretary of State's delay in initially serving an acknowledgement of service was inappropriate and I apologise unreservedly for that. There's also no doubt that, having said that we were going to serve our evidence early, the Secretary of State ought to have served her evidence early. I apologise again unreservedly for that. But what the claimant seeks to do is to spell out of that a remarkable costs order that would say, despite the fact that the Secretary of State has succeeded on every point to such an extent that your Lordship and your Ladyship didn't really need to hear from me at all, that the claimant seeks their costs all the way up on points which your Ladyship and your Lordship essentially found unarguable, all the way up until 22 May, in my submission, that would be an inappropriate costs order to make. If your Lordship and your Ladyship wish to make some kind of percentage reduction in costs, that's a matter for your Lordship and your Ladyship, the costs discretion lies with you. But the standard rule for costs is, costs run with the event, the claimants won on Article 8, they knew they were going to win on Article 8 from the order of Jay J, they have got nothing more than that from that date and I would say, especially given the points which they have dropped, the appropriate order would be to at least make some attempt to reflect the balance and also to reflect the fact that the Article 8 individual searches formed a tiny part of the difficulty in these proceedings. The real meat of the case, the authorities, the argument, the skeleton argument, was all focused on whether or not the policy was unlawful. On that, the claimant's argument has been found to be unsustainable on every ground.
92. MR JUSTICE COLLINS: Thank you.
93. MR DEAKIN: I'm grateful.
94. MISS MOUNTFIELD: My Lord, my Lady, may I reply briefly on the dropping of the public sector equality duty argument. The public sector equality duty, as I'm sure you are aware, requires a decision-maker to give due regard to equality at the formative stage of a decision-making process. It must be common ground that wasn't done here because Miss Prince says in her evidence we adopted this policy because of operational requirements and then undertook the equality impact assessment. When that equality impact assessment was disclosed, my clients took the view that although there was still a technical breach of public sector equality duty there was no point in wasting court time or public money pursuing it because the (Inaudible) happened after the event was good enough that we wouldn't have got anything more than a declaration and it therefore added nothing. That is why that ground was dropped.
95. MR JUSTICE COLLINS: It was a strange ground to apply at all, surely, because if you had been male prisoner complaining I can see there might be a potential argument that this was discriminatory against males. But, since females are getting a better deal as it were than males, I can't quite see how there can be any sensible argument in your favour on equality.
96. MISS MOUNTFIELD: My Lord, the public sector equality duty was argued principally in relation to mental disability, the impact on mentally disordered patients. It was that EIA was seen, we were still right, they didn't take it into account at a formative stage, but, so what, because we can't criticise the actual quality of that assessment on that basis so there's no point pursuing it. That is why it was dropped called.
97. LADY JUSTICE RAFFERTY: We have got that point.
98. MISS MOUNTFIELD: Running Article 3 was only in the individual cases that we excluded and the principles in a sense run into one another. Cases like Wainwright, there wasn't a vast amount more that arose from that. But the point that we should have just formed our view because the defendant was not required to serve evidence is, in my submission, a surprising one when from as early as 31 January, the Treasury Solicitor was writing us e-mails, saying we are interviewing the governor, we are interviewing the officers, we are interviewing a policy person and we are going to give evidence on all of this. So it wasn't just a question of us taking a view on the evidence, it was waiting to see what they were going to say. We didn't know that they were only going to rely on Miss Prince until they did only rely on Miss Prince on, so far as we were concerned, 17 April. My submission is that the order that I suggest is the correct one in all the circumstances.
99. LADY JUSTICE RAFFERTY: In fact, the immediate predecessor to Jay J was not Davies J, it was Sales J.
100. MR JUSTICE COLLINS: The point you're making about Jay J's order, if I correctly understand you, is that the way he puts it is that the problems which have arisen arise as much if not more from the policies themselves rather than their application and he says that that was arguable.
101. MISS MOUNTFIELD: Yes.
102. MR JUSTICE COLLINS: The point you make is that, in the light of that, it was reasonable for you to wait until they put in their evidence to see quite whether there was any real chance that the arguability might disappear.
103. MISS MOUNTFIELD: Yes.
104. MR JUSTICE COLLINS: Once you have got on judge indicating that the point is arguable then it's not unreasonable to wait and see what the evidence from the other side is.
105. MISS MOUNTFIELD: In so far as one can get mood music from orders for permission, it is relatively positive mood music on that. We also took the hint as to the mood music on the public sector equality duty point on which he did grant permission, but said, I'm not sure it will take you very far.
106. LADY JUSTICE RAFFERTY: There were clear case management directions.
107. MR JUSTICE COLLINS: This defendant in particular ought to comply with court orders.
108. MISS MOUNTFIELD: My Lord, that was the other point that I wanted to make. In the Denton case, which is in the additional bundle of authorities, when the Master of the Rolls was discussing what sanction ought to be applied and what ought to be regarded as an immaterial breach, it isn't just the prejudice to the individual claimant, although there has been some here. It is the litigation as a whole, not just for you, what about the other people who need legal aid?
109. LADY JUSTICE RAFFERTY: You don't need to convince us on that. We are with you costs up until 22 May. Can you draft an order. We agree with you Miss Mountfield. We will give you costs up until 22 May. Will you draft an order for the court?
110. MISS MOUNTFIELD: I'm very grateful, my Lady.
111. MR JUSTICE COLLINS: And then the defendant's costs thereafter.
112. MR DEAKIN: What's the subsequent -- ? I think Miss Mountfield's original submission is that there would be no costs after that. We say at the very least the defendant should have their costs.
113. MR JUSTICE COLLINS: Yes, the normal rules apply.
114. MR DEAKIN: 22 May. Thank you, my Lord, thank you. Could we set them off against each other?
115. MR JUSTICE COLLINS: Of course.
116. MISS MOUNTFIELD: Well, it depends what they asked for.
117. MR JUSTICE COLLINS: I say of course.
118. MISS MOUNTFIELD: It wasn't what they asked for. It does have the effect that each side bears its own cost which isn't, in my submission, a fair outcome given the way that the Treasury Solicitor and the Secretary of State for Justice conduct themselves. In my submission, Mr Deakin didn't ask for that set off and if he had I would have tried to respond to it because it does seem in my submission unfair for what is given with one hand on the basis of the defendant's conduct to be taken away again because the defendant would never have got costs from us.
119. MR JUSTICE COLLINS: You should have dropped it once you realised that you were going to lose on the attack on the policy.
120. MISS MOUNTFIELD: My Lord and my Lady, my final point I make without any expectation of Mr Deakin, the court must make this application, I have permission to appeal because it is a point of (Inaudible) argument.
121. LADY JUSTICE RAFFERTY: Sorry? Are you sure? Did you say that one of your lay clients had come along to listen?
122. MISS MOUNTFIELD: She had, she did, but she's gone back. She came in case it was said that she wasn't telling the truth about being (Inaudible).