PROCEDURE

The case originated in an application (no. 12350/04) 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 two British nationals, Mary and Alan Wainwright (“the applicants”), on 2 April 2004.

The applicants, who had been granted legal aid, were represented by Mr D. Reston, a lawyer practising in York, and Mr I. Christie, a barrister practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, of the Foreign and Commonwealth Office.

The applicants complained that they had been strip-searched when seeking to visit a relative in prison, relying on Articles 3 and 8 of the Convention, and that they had had no effective remedy as required by Article 13 of the Convention.

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1.

By a decision of 13 December 2005, the Chamber declared the application admissible.

The applicant, but not the Government, filed further 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 Government made comments on just satisfaction.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The first applicant, Mrs Mary Wainwright, is a United Kingdom national, who was born in 1953 and lives in Leeds. The second applicant, her son Mr Alan Wainwright, is a United Kingdom national, who was born in 1975 and lives in Leeds. He has cerebral palsy and severe arrested social and intellectual development. He was defined as a “patient” within the meaning of the Mental Health Act 1983 and as such lacked the capacity to bring or defend legal proceedings. His application to the Court was made through the first applicant, who acted as his “litigation friend” throughout the domestic proceedings.

In August 1996, Patrick O’Neill (the first applicant’s son and the second applicant’s half-brother) was arrested on suspicion of murder and detained on remand at HMP Armley, Leeds. Following a report by a senior prison officer raising suspicions that Mr O’Neill was involved in the supply and use of drugs within the prison, on 23 December 1996 the governor ordered, inter alia, that all Mr O’Neill’s visitors be strip-searched before visits.

Unaware of the governor’s orders, on 2 January 1997 the applicants attended Armley Prison to visit Mr O’Neill. Until then, neither of them had previously been to a prison. On presentation of their visiting orders, the applicants were requested to join the queue of visitors lined up by a security barrier. As requested, they removed their coats and placed them with their bags on a conveyor belt to be X-rayed. They were then frisked and searched by metal detector. Whilst waiting with other visitors in a corridor to go inside, a number of prison officers approached them and told the applicants to follow them. They were taken across the courtyard from the south gatehouse by four or five prison officers. The second applicant asked his mother what was happening. As they approached the north gatehouse, one of the officers stated that they had reason to believe that the applicants were carrying contraband. When the first applicant asked what this meant, she was told that he was referring to drugs.

At the north gatehouse, the applicants were taken through another security barrier and up some stairs to the first floor. They were informed that they would be strip-searched and that if they refused they would be denied their visit to Mr O’Neill. The second applicant was beginning to be distressed and the first applicant tried to calm him down. They were then taken to separate rooms for the searches.

A. The search of the first applicant

The first applicant was taken by two female officers into a small room which had windows overlooking the road in front of the prison and the administration block beyond it. It was dark outside and the lights in the room were on. There were lights on in the building, which led the first applicant to believe that people were still working in the administration block. Although there were roller blinds on the windows, they were not pulled down. The first applicant was told to take off her jumper and vest. One of the officers searched them whilst the other officer walked around her, examining her naked upper body. She was then instructed to remove her shoes, socks and trousers, which she did. At this point, a third female officer entered the room. This officer asked where the consent forms were, and was told by one of the officers where to find them. In answer to a question from the first applicant, the third officer confirmed that the form was for the second applicant. The first applicant explained that it would be no use to him because of his learning difficulties, particularly with reading and understanding, and that someone else needed to be there to explain to him what was happening. The third officer then left and the search of the first applicant continued. By this time she was crying. She was standing naked apart from her underwear. On her request, she was returned her vest and allowed to put it back on. She was told to pull down her underwear which she did and then told to spread her legs. She was then told to take one leg out of her underwear so her legs could be spread wider. She was told to bend forward and her sexual organs and anus were visually examined. The officer inspecting her body then asked the first applicant to pull her vest up again, asking for it to be raised higher and higher until it was above her breasts. The first applicant asked why that was necessary since they had already inspected her top half. The officer ignored her and continued walking around her body. She was then told to put her clothes back on.

By the end of the search, the first applicant was shaking and visibly distressed. She believed that anyone outside the prison looking at the windows in the room where she was being strip-searched could have seen her in a state of undress. She was worried that if she protested too much she would not be allowed in to visit Mr O’Neill. She was also worried about what was happening to the second applicant. Although none of the officers touched her, she felt threatened by their actions and considered that she had no alternative but to comply with their instructions.

After she had been told to put her clothes back on, one of the officers approached the first applicant and asked her to sign the form to consent to a strip-search (F2141). Attached to the consent form is a summary of the procedure to be carried out. The first applicant told the officers that she might as well sign it as there was by that stage nothing else the officers could do to her and she then did so without reading it.

B. The search of the second applicant

The second applicant was taken to a separate room by two male officers. At first he refused to go into the room but was told that he would not get to see his brother if he did not agree. Once in the room, one of the officers put on a pair of rubber gloves. This frightened the second applicant who feared that there would be a search of his rectum. As requested, he removed the clothes from the upper half of his body and they were searched. He was subjected to a finger search, which included poking a finger into his armpits. The prison officers then told the second applicant to remove the clothes from the lower half of his body. At first he refused to remove his boxer shorts. He was by this stage crying and shaking. He reluctantly removed his boxer shorts and was told to spread his legs. Because of his physical disability, he had to balance with one hand on the wall to do so. One of the prison officers looked all around his naked body, lifted up his penis and pulled back the foreskin. He was then allowed to get dressed.

After this, one prison officer left the room and returned with a consent form. When presented with it, the second applicant explained that he could not read and that he wanted his mother to read it to him. The officers ignored this request and said that if he did not sign the form he would not be allowed in to visit his brother. He signed the form.

The applicants were led back to the prison to proceed with their visit. During the visit, the first applicant told Mr O’Neill what had happened. The first applicant went into the toilet where she cried and vomited about four times. The second applicant felt shaken and nervous and was upset. The applicants did not stay for the full length of their visit.

C. Effects of the searches

Regarding the first applicant, on returning home, she removed her clothes and bathed because she felt upset, angry and dirty. Because of her experience, she did not visit Mr O’Neill for a further four months. In October 1998, in the context of the civil proceedings, she was examined by Dr Sims, Professor of Psychiatry. At that time (approximately twenty-one months after the incident), the first applicant stated that she still thought about the strip-search about once a week, continued to get upset about it, remained angry about what had happened and had difficulty sleeping. Dr Sims considered that the severe upset that she had experienced in the prison made her existing depression (for which she was receiving medication at the time of the visit) worse, but that, apart from recurrent intrusive recollections of her time at the prison and psychological distress at anything that resembled her experience, she did not show other symptoms of post traumatic stress disorder (PTSD). He concluded that, as a result of her aversive experience in the prison, the first applicant would be more vulnerable to future traumatic events and more prone to depressive reaction.

As for the second applicant, on his return home from the visit, he went to his bedroom crying. For about five weeks after the incident, he would not see his girlfriend, baby son, friends or anyone else and spent large amounts of his time in his bedroom. He was also examined by Dr Sims in October 1998. At this time, he stated that he was still feeling bad about the incident, had difficulty sleeping, and had nightmares about going into the room at the prison and of being strip-searched. He thought about being in prison almost continuously and broke out in a sweat and felt frightened when he recalled the incident. During a subsequent visit, he saw some of the same officers who had strip-searched him and became very frightened. In addition, he became afraid to leave the house alone and therefore stayed at home, only going out with his mother, the first applicant. He lost interest in his previous activities, showed irritability and hypervigilance.

Dr Sims concluded that the second applicant was suffering from PTSD (scoring 15 on the DSM-IV (American Psychiatric Association Diagnostic and Statistical Manual) scale, where 10 would indicate presence of PTSD) and had a depressive illness. He found that both illnesses had been substantially caused by his strip-search experience. He found that the second applicant had experienced the strip-search as a threat to his physical integrity, believing that he was going to experience anal penetration, to which he had responded with fear and a feeling of hopelessness. His symptoms were severely impairing his ability for social functioning. Dr Sims concluded that even after recovery the second applicant would remain vulnerable to further symptoms with lesser provocation than previously.

In April 2000, the second applicant was further examined by Dr Sims. He concluded that he was still suffering from post traumatic stress disorder (which in fact was more severe, measuring 18 on the DSM scale) and depressive illness. He predicted some improvement, with appropriate treatment, within one to two years.

D. Civil proceedings

On 23 April 2001 the County Court upheld the applicants’ civil claims against the Home Office, holding that the searches constituted a trespass to the person which could not be justified by Rule 86 § 1 of the Prison Rules (see Relevant domestic law and practice below) for two reasons. Firstly, the trial judge held that the strip-searches were an invasion of their privacy exceeding what was necessary and proportionate to deal with the drug smuggling problem. Although he accepted that there were serious drug problems at the prison at the time of their visit and that there were reasonable grounds for believing that Patrick O’Neill had been obtaining illicit drugs (he referred to the report by a senior prison officer that his speech had been slurred and mannerisms incoherent), he held that the prison officers should not have searched the applicants as it would have been sufficient to have searched Mr O’Neill after they left. Secondly, the prison authorities had not adhered to their own rules. The judge rejected the applicants’ submission that Article 3 was relevant, holding that although strip-searches were unpleasant they did not amount to inhuman or degrading treatment. The trial judge accepted the diagnosis of the second applicant as suffering from PTSD, but did not think that his symptoms had lasted as long as the psychiatrist thought, and that the second applicant had substantially recovered from the effects of the strip-search by March 1998, when he made a parasuicide attempt. He awarded the first applicant a total of 2,600 pounds sterling (GBP) (comprising GBP 1,600 basic damages and GBP 1,000 aggravated damages) and the second applicant a total of GBP 4,500 (comprising GBP 3,500 basic damages and GBP 1,000 aggravated damages), the Home Office having conceded battery following the trial judge’s factual findings.

On 20 December 2001 the Court of Appeal allowed the Home Office’s appeal. The court disagreed that trespass to the person could be extended to fit these circumstances and found that no wrongful act (save for the battery against the second applicant) had been committed. Lord Chief Justice Woolf noted that there were numerous ways in which drugs could be smuggled into prison and that the most vigorous regime of searching prisoners would not in itself suffice. He found therefore that a search of Mr O’Neill would have been inadequate. He rejected the applicants’ arguments that the Human Rights Act 1998, which did not have retrospective effect, could affect the outcome of the appeal. While agreeing that the Act had no retrospective effect, Lord Justice Buxton commented that if the events had occurred after the coming into effect of the Act, the applicants would have had a strong case for relief due to the manner of the search and the public authority’s lack of regard for Article 8. The court set aside the first-instance judgment and substituted an award of a total of GBP 3,750 to the second applicant for battery.

On 16 October 2003 the House of Lords upheld the judgment of the Court of Appeal and dismissed the applicants’ appeal. Holding that the Human Rights Act 1998 was not applicable as the events took place before its entry into force on 2 October 2000, the House of Lords nevertheless went on to consider whether, if the Act had been in force, breaches of the Convention could be made out. Lord Hoffmann, delivering the leading judgment, found that there was no infringement of Article 3 as the conduct had not been sufficiently humiliating to constitute degrading treatment. “50. In the present case, the judge found that the prison officers acted in good faith and that there had been no more than ‘sloppiness’ in the failures to comply with the rules. The prison officers did not wish to humiliate the claimants; the evidence of Mrs Wainwright was that they carried out the search in a matter-of-fact way and were speaking to each other about unrelated matters. The Wainwrights were upset about having to be searched but made no complaint about the manner of the search; Mrs Wainwright did not ask for the blind to be drawn over the window or to be allowed to take off her clothes in any particular order and both of them afterwards signed the consent form without reading it but also without protest. The only inexplicable act was the search of Alan’s penis, which the prison officers were unable to explain because they could not remember having done it. But this has been fully compensated.”

As for Article 8: “51. Article 8 is more difficult. Buxton LJ thought, at [2002] QB 1334, 1352, para. 62, that the Wainwrights would have had a strong case for relief under section 7 if the 1998 Act had been in force. Speaking for myself, I am not so sure. Although Article 8 guarantees a right of privacy, I do not think that it treats that right as having been invaded and requiring a remedy in damages, irrespective of whether the defendant acted intentionally, negligently or accidentally. It is one thing to wander carelessly into the wrong hotel bedroom and another to hide in the wardrobe to take photographs. Article 8 may justify a monetary remedy for an intentional invasion of privacy by a public authority, even if no damage is suffered other than distress for which damages are not ordinarily recoverable. It does not follow that a merely negligent act should, contrary to general principle, give rise to a claim for damages for distress because it affects privacy rather than some other interest like bodily safety: compare Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65.”

Dealing with the applicants’ submission that, in order for the United Kingdom to conform to its international obligations under the Convention, the House of Lords should find that there was (and in theory always had been) a tort of invasion of privacy under which the searches of the applicants were actionable and damages for emotional distress recoverable, Lord Hoffmann stated: “32. Nor is there anything in the jurisprudence of the European Court of Human Rights which suggests that the adoption of some high level principle of privacy is necessary to comply with Article 8 of the Convention. The European Court is concerned only with whether English law provides an adequate remedy in a specific case in which it considers that there has been an invasion of privacy contrary to Article 8 § 1 and not justifiable under Article 8 § 2. So in Earl Spencer v United Kingdom 25 EHRR CD 105 it was satisfied that the action for breach of confidence provided an adequate remedy for the Spencers’ complaint and looked no further into the rest of the armoury of remedies available to the victims of other invasions of privacy. Likewise, in Peck v United Kingdom (2003) 36 EHRR 41 the court expressed some impatience, at paragraph 103, at being given a tour d’horizon of the remedies provided and to be provided by English law to deal with every imaginable kind of invasion of privacy. It was concerned with whether Mr Peck (who had been filmed in embarrassing circumstances by a CCTV camera) had an adequate remedy when the film was widely published by the media. It came to the conclusion that he did not.

Counsel for the Wainwrights relied upon Peck’s case as demonstrating the need for a general tort of invasion of privacy. But in my opinion it shows no more than the need, in English law, for a system of control of the use of film from CCTV cameras which shows greater sensitivity to the feelings of people who happen to have been caught by the lens. For the reasons so cogently explained by Sir Robert Megarry in Malone v Metropolitan Police Comr [1979] Ch 344, this is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.

Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies. Sections 6 and 7 of the Act are in themselves substantial gap fillers; if it is indeed the case that a person’s rights under Article 8 have been infringed by a public authority, he will have a statutory remedy. The creation of a general tort will, as Buxton LJ pointed out in the Court of Appeal, at [2002] QB 1334, 1360, para. 92, pre-empt the controversial question of the extent, if any, to which the Convention requires the State to provide remedies for invasions of privacy by persons who are not public authorities.

For these reasons I would reject the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy.”