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Frances Crook's blog · 22 Feb 2019

The state cannot outsource its human rights obligations

Frances Crook in front of office bookshelves

The high court made an important judgment this week about the failure of the Ministry of Justice to monitor private prisons. It got no media coverage as it got lost in the maelstrom of politics.

Peterborough prison, run by the French food company Sodexo, admitted that it had carried out illegal strip searches on three women and a woman who was in the process of transitioning to male. The company admitted that there had been systemic failings at the prison and deficient training for staff. The prisoners settled the case against Sodexo but maintained their challenge to the secretary of state, arguing that there was a failure to supervise and monitor proper protections for prisoners.

The high court agreed with the claimants’ arguments in respect of Article 8 of the European Convention on Human Rights and found that there were systemic failures in the particularly difficult and sensitive area of strip-searching:

“Any person in any profession can on occasion make a mistake. The capacity for mistakes is part of the human condition. But where a significant number of people working together are responsible for a number of mistakes then the conclusion readily follows that something serious and preventable must have occurred, especially in the sensitive area in which I am concerned where much work has been done in recent years precisely to avoid the sort of unlawfulness which occurred.”

The court found that the breaches were serious. A significant number of officers were involved and they all proceeded straight to a level 2 search (a full strip search), without first conducting a Level 1 search (which requires the removal of the woman’s clothing apart from her underwear) or a rub-down search. In one case, this required a prisoner to remove and dispose of a sanitary towel, which the judgment says must have been humiliating and embarrassing for the woman concerned. No adequate reasons were given for the search, and no proper records were kept. In summary, the court concluded, “there were numerous serious, systemic and widespread failures at Peterborough prison over the relevant period which led to a number of strip searches being carried unlawfully, for a variety of different reasons”.

The critical finding of the court condemning the secretary of state was the failure not to have an adequate and effective system in place to prevent infringements in the first place. This is particularly egregious when it affected the strip searching of female and transgender prisoners, the majority of whom have previously experienced sexual, physical or psychological abuse.

This judgment will have significant implications for private government contracts in all fields. The judgment makes clear that the state cannot outsource its human rights obligations and that it can be held accountable in domestic courts for a failure to monitor and supervise its private contractors.

The Howard League submitted detailed expert evidence to the court.

Read the judgment in full.

Samuel Genen was solicitor to the women. Jason Pobjoy, Isabel Buchanan and Sophie Walker acted as Counsel for the Claimants.

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