An appeal against a ruling that Northern Ireland Prison Service’s policy of recording and retaining forced strip searches breaches human rights law must fail, senior judges have held.
Lord Chief Justice Sir Declan Morgan cast doubt on any justification for filming the process and keeping footage for up to six years.
He said: “We consider this is a particularly intrusive form of interference with Article 8 (rights to privacy).”
The verdict came in a case involving an inmate now jailed for weapons offences.
Earlier this year Gerard Flannigan, a 35-year-old prisoner being held in the separated wing for republican inmates at HMP Maghaberry, won a judicial review against the practice.
In October 2014 he was subjected to a full search by force after refusing to give his consent.
The court heard a video camera was used to record the events.
Flannigan’s legal action against the Prison Service was focused solely on the filming of a so-called strip search.
No footage is allowed to be taken of intimate body parts during a process which must be carried out by an officer of the same sex, and only when the prisoner will not co-operate.
A governor at the jail was said to have watched the tape and stated that it only consists of an introduction and an end section showing the prisoner finishing off dressing again.
The critical section of the footage is either no longer available or did not record, the court was told.
Counsel for Mr Flannigan claimed he was subjected to degrading treatment that breached his Article 8 privacy entitlements under the European Convention on Human Rights.
It was also alleged that the way filming is carried out unlawfully breached prison rules.
Lawyers representing the Prison Service insisted that in the footage Mr Flannigan showed no signs of either distress or having been subjected to any inappropriate interference.
It was also emphasised that safeguards are in place during the process.
A High Court judge decided the removal of clothes had been justified.
But the filming of the process, and the retention of the record was held to be a breach of human rights.
The verdict was challenged in the Court of Appeal by the Prison Service.
Following submissions, however, Sir Declan said: “So far as the appeal is concerned, it seems to us it must fail.”
Identifying no law for the process, he added: “We therefore doubt whether instructions and guidelines on their own would be sufficient to justify that level of intrusion.”
With the court’s position set out, proceedings were adjourned until next month for a final outcome.