Two appellants were prisoners at a high security prison. A search involved the prisoner squatting so that items which might be hidden in their genital or anal areas could be seen. The appellants refused to squat. Both were charged with refusing to obey a lawful order. The charges were found proved by the deputy governor, who imposed a penalty of two additional days on one of the men together with various other penalties, and penalties not involving additional days on the second man. The second man was a lifer; the first was not. The Secretary of State upheld the decisions and judicial review was refused.
Held: The Court dismissed the appeals.
Lord Woolf CJ said: ‘In the case of Mr Fitzgerald’s clients, the nature of the offence and the severity of the penalty actually imposed for the offence point in our judgment uncontestedly to the conclusion that no criminal charge is involved. Mr Fitzgerald argued that the nature of the proceedings is a more satisfactory second criterion but we do not accept this gloss improves on the Engel approach. We are concerned as to whether a criminal charge is involved. The nature of the offence was essentially disciplinary. Furthermore, the penalty which was imposed in the case of Mr Carroll, did involve additional days but additional days of a very limited number and not an additional sentence of imprisonment. It is true that the rule potentially provided for 42 additional days being imposed but as a matter of practice anything other than a small number of additional days would have been set aside as inappropriate for an offence of disobeying an order. We therefore have no hesitation in confirming the detailed and clear reasoning of Newman J for saying that Mr Fitzgerald’s clients were not subject to a criminal charge.’
Judges:
Lord Woolf CJ, Tuckey and Arden LJJ
Citations:
[2002] 1 WLR 545, [2001] EWCA Civ 1224, [2001] HRLR 58
Links:
Jurisdiction:
England and Wales
Citing:
Appeal From – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited by:
Appealed to – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Tangney v The Governor of HMP Elmley and Another CA 29-Jul-2005
The claimant was a serving a life sentence. During prison disciplinary proceedings he was refused legal and other assistance, and an outside tribunal on the basis that since any finding would not lead to any loss of remission or extra time, his . .
Lists of cited by and citing cases may be incomplete.
Prisons, Administrative
Updated: 29 June 2022; Ref: scu.222931