PROCEDURE

The case originated in an application (no. 56745/00) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Wayne Thomas Black (“the applicant”), on 1 December 1999.

The applicant, who had been granted legal aid, was represented by Mr S. Creighton, a lawyer practising in London. The United Kingdom Government (“the Government”) were represented by their Agents, Mr C.A. Whomersley and, subsequently, Mr J. Grainger, both of the Foreign and Commonwealth Office.

The applicant complained under Article 6 § 1 about his adjudication proceedings pointing to the role of the Governor and the lack of a public pronouncement of the decision. He also invoked Article 6 § 3(c) as regards the lack of legal representation.

By a decision of 27 September 2005, a Chamber of the Fourth Section of the Court declared the application partly admissible.

The applicant and the Government each filed further written observations (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 3 in fine).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in 1967 and is currently in prison in HMP Longmartin.

On 26 July 1995 the applicant was sentenced to 20 years’ imprisonment for armed robbery. On 8 January 1996 he was sentenced to consecutive sentences of 3 years’ imprisonment for escaping lawful custody and of one year for assault. He was eligible for consideration for release on parole on licence on 5 September 2006 and qualifies for automatic release on licence on 5 September 2010.

On 29 May 1997 he was escorted to the searching area for high risk prisoners following a prison visit. Two officers conducted the strip search. During that search an item fell from the applicant’s anus. The applicant immediately picked it up and re-inserted it into his anus. The officers then ordered the applicant to hand over the object. The applicant refused, stating “I cannot do that”. He was charged with disobeying a lawful order contrary to Rule 47(19) of the Prison Rules 1964 (applicable at the relevant time).

On 31 May 1997 the hearing of the charge before the prison Governor commenced and the applicant was granted an adjournment to obtain legal advice. On 10 June 1997 he applied to the Governor for legal representation at the hearing. The hearing re-commenced on 12 June 1997. The request for legal representation was refused by the Governor.

The applicant’s defence was that the item was a suppository. Evidence was adduced that no suppositories had been prescribed to the applicant in the 2 years prior to the incident and that the applicant had not complied with the officers’ order. He was found guilty as charged. He was awarded 5 additional days’ detention together with exclusion from work and forfeiture of privileges for 10 days.

The applicant applied to the Home Office to have the Governor’s ruling quashed on the basis that he could not have handed over the item as it had already been re-inserted in his anal area. His application was rejected on 1 August 1997. He then complained to the Prisons Ombudsman who gave his opinion and recommendation on 9 August 1997. He was not persuaded that the adjudication had properly investigated the sequence of events during the search: if it was the case that the applicant had already re-inserted the item when he was asked for it, the prison officer’s request to retrieve it may not have been lawful. He recommended that the Governor’s finding be quashed. By letter dated 5 January 1998 the prison service confirmed that the Prisons Ombudsman’s recommendation had not been accepted.

On 17 April 1998 the applicant applied for leave to apply for judicial review of the decision of the Governor. A hearing took place in the High Court on 21 June 1999. The prison service submitted that effective drugs’ control in prison required that they had to have the power to conduct strip searches including making a request to remove items suspected of being secreted internally. The applicant provided medical evidence to the effect that such removal risked causing harm to him. The High Court rejected the application finding, inter alia, that, depending as it does on the circumstances of the case, an order to a prisoner to remove an item from his anus would not necessarily be unlawful. The applicant did not appeal.