Information Note on the Court’s case-law No. 89
September 2006
Wainwright v. the United Kingdom - 12350/04
Judgment 26.9.2006 [Section IV]
Article 8
Article 8-1
Respect for private life
Disregard for procedures for strip-searching visitors to a prison: violation
Article 3
Degrading treatment
Inhuman treatment
Strip-search of family members paying a prison visit: no violation
Article 13
Effective remedy
Prison officers’ negligence did not give grounds for any civil liability for strip-searches, in particular as there was no general tort of invasion of privacy: violation
Facts: The applicants are Mary Wainwright and her son, Alan Wainwright. Mr Wainwright has cerebral palsy and severe arrested social and intellectual development. In 1996, Ms Wainwright’s other son, Mr O’Neill (Mr Wainwright’s half brother) was arrested on suspicion of murder and detained on remand. Since he was suspected of being involved in the supply and use of drugs within the prison, the prison governor ordered that all of his visitors be strip-searched. Unaware of the Governor’s orders, the applicants went to visit him in January 1997. After passing through the initial security checks, they were informed that they would be strip-searched, as there was reason to believe that they were carrying drugs. If they refused, they would not be allowed to visit Mr O’Neill. Ms Wainwright was taken by two female officers into a small room overlooking offices. She eventually had to stand naked apart from her underwear. Her sexual organs and anus were visually examined. By the end of the search she was shaking and visibly distressed. As the blinds on the windows were not pulled down she believed that anyone looking into the room from the outside could have seen her in a state of undress. After she had been told to put her clothes back on, one of the officers asked her to sign the form to consent to a strip search. Attached to the consent form was a summary of the procedure to be carried out. She signed the form.
Mr Wainwright was taken to a separate room by two male officers, where he had to remove the clothes from the upper half of his body. After a finger search, which included poking a finger into his armpits, the prison officers told Mr Wainwright to remove the clothes from the lower half of his body. By this stage he was crying and shaking. He was told to spread his legs. One of the prison officers looked all around his naked body, lifted up his penis and pulled back the foreskin. Mr Wainwright was then given a consent form to sign. He 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 then signed the form.
Because of her experience Ms Wainwright did not visit Mr O’Neill for a further four months. In 1998 she was examined by a psychiatrist. The doctor considered that the severe upset that she had experienced in the prison had made her existing depression worse. Mr Wainwright was examined by the same doctor, who concluded that he was suffering from post-traumatic stress disorder and had a depressive illness. He found the strip-search to have been the main cause of both illnesses.
In the ensuing proceeding which the applicants had brought against the Home Office the Court of Appeal found that trespass to the person could not be extended to fit the applicants’ circumstances and found that no wrongful act had been committed (except battery against Mr Wainwright, who was awarded damages).
Law: Articles 3 and 8 – Given the endemic drugs problem in the prison and the prison authorities’ suspicion that Mr O’Neill had been taking drugs, the searching of visitors could be considered a legitimate preventive measure. Nonetheless, the application of such a highly invasive and potentially debasing procedure to people who were not convicted prisoners or under reasonable suspicion of having committed a criminal offence had to be conducted with rigorous adherence to procedures and all due respect to their human dignity. The domestic courts had found that the prison officers carrying out the searches had failed to comply with their own regulations and had demonstrated “sloppiness”. In particular, it appeared that they had not provided the applicants with a copy of the form setting out the applicable procedure before the searches had been carried out, and which would have put them on notice of what to expect and permitted informed consent. The prison staff had also overlooked the rule that the person to be searched should be no more than half-naked at any time. It further appeared that Ms Wainwright had been visible through a window, in breach of proper procedure. It was for the authorities, not the visitor, to ensure that this procedure was followed. Although there was a regrettable lack of courtesy, there was no verbal abuse by the prison officers and, importantly, there was no touching of the applicants, except in the case of Mr Wainwright, who eventually received damages for battery. The Court therefore excluded that element from its assessment. The treatment undoubtedly had caused the applicants distress but had not reached the minimum level of severity prohibited by Article 3. Rather the case fell within the scope of Article 8. In this regard the Court accepted that the search had pursued the legitimate aim of fighting the drugs problem in the prison. On the other hand, it was not satisfied that the searches had been proportionate to that aim, given the manner in which they had been carried out. Where procedures had been laid down for the proper conduct of searches on outsiders to the prison who might very well be innocent of any wrongdoing, the prison authorities were required to comply strictly with those safeguards and by rigorous precautions protect the dignity of those being searched as far as possible. The Court found that they had not done do so in the applicants’ case and the searches carried out on them could not be regarded as “necessary in a democratic society”.
Conclusions: no violation of Article 3 (unanimously) but violation of Article 8 (unanimously).
Article 13 – While the applicants had taken domestic proceedings seeking damages for the searches and their effects they had had on them, these had been unsuccessful, save as regards the instance of battery on Mr Wainwright. As regards the other elements of the strip-searches, the House of Lords had found that the negligent action disclosed by the prison officers did not give grounds for any civil liability, in particular as there was no general tort of invasion of privacy. In those circumstances, the Court found that the applicants did not have available to them a means of obtaining redress for the interference with their rights under Article 8.
Conclusion: violation of Article 13 (unanimously).
Article 41 – The Court awarded the applicants EUR 6,000 euros for non-pecuniary damage and made a further award for costs and expenses.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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