Full case report

Wainwright v United Kingdom

Reference Application No. 12350/04
Court European Court of Human Rights

Judge Casadevall (President), Bratza, Pellonpaa, Maruste, Traja, Mijovic, Sikuta (Judges) and Early (Section Registrar)

Date of Judgment 26 Sep 2006


Summary

Human Rights – Prohibition of inhuman and degrading treatment – Article 3 – Respect for private and family life – Article 8 – Effective domestic remedy – Article 13 – Prison visit – Strip search


Facts

The Applicants, a mother and her handicapped son Alan, attended HMP Leeds to visit another son Patrick who was being held on remand. The Governor had given an order that all Patrick’s visitors were to be strip-sesarched as he was suspected of using drugs. The Applicants were separated and told that if they did not agree to the search they would be denied their visit. They reluctantly agreed. They were not asked to sign consent forms until after the searches were complete. Various breaches of procedure took place including the touching of Alan’s genitals. Mrs Wanwright was severely distressed as a result of the strip search and Alan, who suffers from cerebral palsy and had a mental age of 12 at the time, sufferred PTSD.


Issue

(1) Whether the treatment to which the Wainwrights had been subjected constituted degrading treatment contrary to Article 3;

(2) Whether that treatment was in violation of their right to respect for private and family life guaranteed by Article 8;

(3) Whether the absence of a remedy in English law constituted a violation of Article 13;

(4) Whether damages should be awarded in just satisfaction


Held

(1) The treatment to which the Applicants had been subjected was negligent and fell short of the level of severity necessary to constitute a breach of Article 3.

(2) However, Article 8 also protects physical and moral integrity. As the searches had not been proportionate to the aim of preventing crime and disorder in the manner in which they had been carried out, there was a violation of Article 8.

(3) The absence of an effective domestic remedy, in particular the absence of a general tort of invasion of privacy, resulted in a breach of Article 13.

(4) The applicants were awarded 3,000 Euros each in damages for the distress caused to them.


Comment

This judgment could be read as requiring the introduction into English law of a general tort of invasion of privacy. On the facts of the case, however, a remedy might now be available under the Human Rights Act 1998 (which was not in force at the time of the events in question). However, no remedy would be available under that Act to a victim of a similar breach of Article 8 where the strip searches were carried out by a body which is not a public authority (for example a store detective or airline security guard).


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Instructing Solicitors

David Reston for the Applicants