Application No. 33269/96

by Robert T. BEAVER, Clive A. HENRY

and Antony HINES

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting in private on 10 September 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 September 1996 by Robert T. BEAVER, Clive A. HENRY and Antony HINES against the United Kingdom and registered on 1 October 1996 under file No. 33269/96;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of the Commission;

- the observations submitted by the respondent Government on 23 February 1998;

- the first applicant's letter of 11 February 1998 and the second and third applicants' failure to reply to the letter of 17 June 1998 of the Secretary to the Chamber;

Having deliberated;

Decides as follows:

THE FACTS

The applicants are British citizens, born in 1957, 1966 and 1948 respectively. They are all detained in HM Wakefield Prison. In the proceedings before the Commission they are represented by Mr J. Dickinson, a solicitor practising in Sheffield.

The facts of the case, as they have been submitted by the applicants, may be summarised as follows.

A. Particular circumstances of the case

In March 1995 prisoners in Wakefield Prison started being tested at random for drugs. According to the applicable procedure, they would be selected without notice, taken to a unit within the prison, strip searched and required to urinate into a container within the sight of prison officers.

On 21 April 1995 the first applicant was required by the prison governor to provide a urine sample for drug testing. He declined to do so on the ground that, as he had suffered sexual abuse in childhood, he was psychologically unable to urinate in the circumstances described above. On 22 April 1995 the governor found that the applicant had committed the disciplinary offence of disobeying a direct order and imposed on him the disciplinary penalty of loss of privileges for five days, loss of association for five days, loss of tobacco for five days, loss of radio for five days, loss of occupation in cell for five days, loss of possession in cell for five days, exclusion from associated work for five days and stoppage of earnings for twenty-one days. The applicant claims that, in the proceedings before the governor, he was refused legal aid and an opportunity to call expert psychological evidence. He appealed against the governor's decision, but his appeal was dismissed.

The second applicant was required to provide a urine sample on 28 March 1995. He refused and was sentenced by the prison governor for disobeying a direct order to seven days on the block, twenty-eight days loss of remission, a fine of £25 and four closed visits. The applicant claims that he was not allowed to be legally represented before the governor. He appealed and his sentence was mitigated in full. However, five days after he was released from the block, i.e. on 10 April 1995, the applicant was again required to provide a sample. When he refused, he was sentenced to seven days on the block, ten days loss of remission and a £20 fine.

The third applicant was required to provide a urine sample at the beginning of April 1995. He asked for permission to obtain legal advice but was not allowed to do so. When he refused to subject himself to the sample-taking procedure, he was sentenced by the governor to seven days on the block, twenty-eight days loss of earnings and twenty-eight days loss of canteen facilities. He claims that his request to be legally represented at the adjudication before the governor was turned down.

On 23 May 1995 the applicants' solicitors wrote to the prison governor requesting that the adjudications be quashed and that the manner in which sampling was carried out should be changed.

The governor replied on 26 May 1995. Although he was not without sympathy for the first applicant, he observed that the latter had never tried to give a sample. He had simply refused a lawful order to go to the special unit for testing. The second applicant had been selected at random on both occasions when he was required to provide a sample. The governor refused any suggestion that the second time the applicant might have been targeted because of his earlier refusal.

Moreover, the governor observed that it was within his power to allow prisoners to be legally represented in disciplinary proceedings before him. As the applicants' cases were straightforward, he considered that there was no reason why their requests for legal representation, if such requests had been made, should have been granted.

The governor also pointed out that Prison Rule 39 allowed prison officers to search an inmate at any time the governor considered it necessary. This rule provided the legal basis for the searching of prisoners before they gave a urine sample. The governor had to ensure that inmates did not attempt to adulterate samples, "as it is not unknown for them to secrete containers of other people's urine about their person". For the same reason "a prison officer must observe the urine flow from the body". The searching procedures were carried out in accordance with those laid down in the approved manual on security and at no time were inmates totally naked.

According to the prison governor, the mandatory drug testing programme had been approved by Parliament and Wakefield Prison's practice and procedure did not depart from the norms and was monitored regularly by senior staff to ensure that the guidelines were strictly adhered to. Finally, the governor informed the applicants' solicitors that he was unable to give them any assurances that their clients would be treated differently from other inmates.

The applicants requested the High Court to grant them leave to apply for judicial review. On 22 November a High Court judge refused to grant them such leave.

The applicants appealed. On 25 March 1996 the Court of Appeal refused to grant them leave to apply for judicial review.

B. Relevant domestic law

Section 16A of the Prison Act, as amended by section 151 of the Criminal Justice and Public Order Act 1994, provides as follows:

"(1) If an authorisation is in force for the prison, any prison officer may, at the prison, in accordance with prison rules, require any prisoner who is confined in the prison to provide a sample of urine for the purpose of ascertaining whether he has any drug in his body.

(2) If the authorisation so provides, the power conferred by subsection (1) above shall include power to require a prisoner to provide a sample of any other description specified in the authorisation, not being an intimate sample, whether instead of or in addition to a sample of urine.

(3) In this section -

"authorisation" means an authorisation by the governor;

"drug" means any drug which is a controlled drug for the purposes of the Misuse of Drugs Act 1971;

"intimate sample" has the same meaning as in Part V of the Police and Criminal Justice Act 1984;

"prison officer" includes a prisoner custody officer within the meaning of Part IV of the Criminal Justice Act 1991; and

"prison rules" means rules under section 47 of this Act".

Rule 39 of the Prison Rules provides as follows:

"(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.

(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.

(4) A prisoner shall be searched only by an officer of the same sex."

Rule 46A of the Prison Rules provides as follows:

"(1) This rule applies where an officer, acting under the powers conferred by section 16 A of the Prison Act 1952 (power to test prisoners for drugs), requires a prisoner to provide a sample for the purpose of ascertaining whether he has any controlled drug in his body.

(2) In this rule "sample" means a sample of urine or any other description specified in the authorisation by the governor for the purposes of section 16A.

(3) When requiring a prisoner to provide a sample, an officer shall, so far as reasonably practicable, inform the prisoner:

(a) that he is being required to provide a sample in accordance with section 16A of the Prison Act 1952; and

(b) that a refusal to provide a sample may lead to disciplinary proceedings being brought against him.

(4) An officer shall require the prisoner to provide a fresh sample, free from adulteration.

(5) An officer requiring a sample shall make such arrangements and give the prisoner such instructions for its provision as may be reasonably necessary in order to prevent or detect its adulteration or falsification.

(6) A prisoner who is required to provide a sample may be kept apart from other prisoners for a period not exceeding one hour to enable arrangements to be made for the provision of the sample.

(7) A prisoner who is unable to provide a sample of urine when required to do so may be kept apart from other prisoners until he has provided the required sample, save that a prisoner may not be kept apart under this paragraph for a period of more than 5 hours.

(8) A prisoner required to provide a sample of urine shall be afforded such degree of privacy for the purposes of providing a sample as may be compatible with the need to prevent or detect any adulteration or falsification of the sample; in particular a prisoner shall not be required to provide such a sample in the sight of a person of the opposite sex."

COMPLAINTS

The applicants complain under Articles 3 and 8 of the Convention about the manner in which random drug testing is carried out in Wakefield Prison. While they accept that random drug testing as such is lawful and permissible, they consider that some of the most degrading aspects of the procedure are not necessary to attain the ends which drug testing serves. The applicants submit that strip searching and the testing of urine samples for body temperature removes all realistic opportunity for a prisoner to hide a substitute sample on him and offer it as his own.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 September 1996 and registered on

1 October 1996.

On 22 October 1997 the Commission (First Chamber) decided to communicate the application to the respondent Government.

On 11 February 1998 the first applicant informed the Commission that he no longer wished to proceed with his application.

The Government's written observations were submitted on 23 February 1998, after an extension of the time-limit fixed for that purpose.

On 18 May 1998 the Secretary to the First Chamber drew the second and third applicants' attention to the fact that the period for the submission of their observations in reply had expired and that no extension of the time-limit had been requested. On 11 June 1998 the applicants' lawyer informed the Commission that no observations on the admissibility and merits would be submitted on behalf of the second and third applicants.

On 17 June 1998 the Secretary to the First Chamber invited the second and third applicants to inform the Commission, before 29 June 1998, whether they wished to withdraw the application. No reply has been received.

REASONS FOR THE DECISION

The Commission notes that it has been informed by the first applicant that he no longer wishes to proceed with his application. It also notes that the second and third applicants did not react to the Commission's invitation to submit observations in reply to the Government's observations. When this fact was brought to their attention, they informed the Commission that no such observations would be submitted without providing any reasons. Finally, the Commission notes that, although the second and third applicants were invited to state whether they wanted or not to withdraw their application, they failed to reply.

In these circumstances, the Commission finds that all three applicants by their conduct indicate that they no longer intend to pursue their application. The Commission further considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of the application.

It follows that the application may be struck off the list of cases pursuant to Article 30 para . 1 (a) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

  M.F. BUQUICCHIO   M.P. PELLONPÄÄ

     Secretary President

to the First Chamber of the First Chamber