Domestic law fails to provide adequate privacy remedy as ECHR finds strip searches breached Article 8
The European Court of Human Rights has today held that the human rights of Mary and Alan Wainwright were violated when they were subjected to strip-searches at HMP Leeds in 1997.
The Wainwrights were visiting a relative who was suspected of using drugs when they were separated and told they had to submit to the searches if they wanted to go ahead with the visit. They were not asked to sign consent forms until after the searches were over. Various breaches of procedure took place including the touching of Alan’s genitals. Mrs Wainwright was severely distressed by the incident and Alan, who has cerebral palsy and had a mental age of 12 at the time, suffered Post Traumatic Stress Disorder as a result of his experience.
The Court found that the treatment to which the Wainwrights had been subjected did not meet the minimum severity required for a violation of Article 3 (inhuman and degrading treatment). However, Article 8 also protects physical and moral integrity; because the searches were not proportionate to the aim of preventing crime and disorder in the manner in which they were carried out, the Court found that there had been a violation of their right to respect for private life under Article 8.
The case became well-known for the lengthy discussions in the Court of Appeal on the state of English law of privacy. In the House of Lords it was again held that the treatment to which the Wainwrights had been subjected (apart from a battery on Alan) had not constituted any wrong under English law. The European Court has also held that that deficiency constituted a breach of Article 13, the right to an effective remedy before a national court. In a significant passage of the judgment the Court noted that the Applicants did not have a means available to them of obtaining redress “in particular because there was no general tort of invasion of privacy” in the United Kingdom.
Dismissing their claims in the House of Lords, Lord Hoffmann doubted whether there had been a breach of Article 8 of the Convention, which was not directly applicable since the events pre-dated entry into force of the Human Rights Act 1998. He stated that he did not think Article 8 required redress for merely negligent invasions of privacy. The European Court’s decision that he was wrong was unanimous.
The Wainwrights were awarded 3,000 Euros each in damages.
5RB‘s Iain Christie represented the Applicants in the European proceedings, as he did in the House of Lords (for which he was nominated for the Bar Pro Bono Award in 2003).
Iain was also one of the counsel representing George Blake whose complaint under Article 6 of the Convention was upheld in a judgment of the European Court also handed down today.
Click here for the 5RB case report and a link to the judgment.
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