Zareena Mustafa wins victory for female muslim visitors to prison

Last year Belmarsh prison reversed a policy in relation to the searching of Muslim female visitors, the change led to a nationwide review which is to be embodied in the Prison Service Instruction on searches.

Some Muslim women adhere to a particular code of dress which comprises three constituent elements: the facial covering (Niqab), the headscarf (Hijab) and the full body covering (jilbab). The jilbab is a loose cloak like garment that covers the whole body and is worn over a women’s ‘normal’ clothes so her shape or figure is concealed.  Some women choose to wear some or all of these items of religious dress when they are out in public or in the company of males who are not family members.  Our client, K, in accordance with her religious beliefs, wears a hijab and jilbab.

K was a regular visitor to Belmarsh prison. Prison visitors are of course subject to routine searches on entry to the prison for well-known reasons. The rub down searches can include searches of the visitor’s waistband (which requires officers be able to access the waistband of clothes and run their hands around it), the mouth and behind the ears.  For Muslim women, such as K, it may appear obvious why an intrusive search of that nature would be an issue if conducted in a mixed public environment.

In the spring of 2011, Belmarsh prison refused to allow Muslim women, subject to the searches described above, to be taken into a private space as was the case previously. Muslim women were asked to lift their veils in order for officers to look into their mouths, undo but not remove their headscarves and lift their jilbabs in order for their waistbands to be searched. K was required to undo her headscarf, in the presence of men, and lift her jilbab, on occasions when she was wearing leggings.

K understood and accepted the reasons for the searches but objected to having them conducted in public as they were against her religious beliefs. Her protestations and requests for private searches were ignored.  Left with a decision as to whether to or not to continue to visit her husband, who was then in custody awaiting trial, K sought legal support.

It was clear that the conduct of searches in relation to headscarves and facial coverings breached existing policy where such searches are explicitly dealt with and this was acknowledged by the prison.  However, whilst the policy required that officers be aware of cultural and religious sensitivities when carrying out searches, it was silent on jilbabs and how they should be treated for the purposes of a search.

The prison initially denied they were in breach in respect of their treatment of jilbabs, asserting there was no requirement for them to conduct these searches in private and that special action would constitute positive discrimination. The prison did not grasp the religious significance or the function of the jilbab, particularly where a woman was wearing ‘regular’ clothes which covered her body such as trousers.

It was against K’s beliefs for the search to be conducted in public because clothes worn beneath her jilbab should not be visible in public. The searches therefore amounted to indirect discrimination and a breach of her human rights.

The prison acknowledged on 12 August 2011that this issue had never been raised before and confirmed it would be changing its local policy with immediate effect in relation to the searching of female Muslim visitors and staff to allow for searching under the jilbab in a private room. In August 2012, we were provided withHMP Belmarsh’s Governor’s Order dated2 September 2011 and the amended Prison Service Instruction 67/2011.

Zareena and Marian Ellingworth are now pursuing a private law claim for damages on behalf of our client for breach of Articles 8 and 9 Human Rights Act 1998 and Equality Act 2010.

The PSI now states:

‘In the case of female Muslim visitors wearing a jilbab (religious outer garment) with trousers/leggings/items usually worn as ‘outer’ garments underneath, there must be a search undertaken of the waistband and this must be undertaken in private with only female staff present. Should any doubt exist about whether the visitor is wearing any outer garments with waistbands under underneath their jilbab then staff should ask the visitor concerned to clarify, and search in a private room if a waistband search is necessary. For clarity, hosiery/tights are classes as underwear, and therefore does not need to have the waistband searched.

If there is any dispute then a manager should be called to assist whilst the visitor waits. Should a waistband not be required to be searched then searching the outside of a jilbab should be undertaken in the same area as all domestic visitors in the same manner that a skirt would be.’