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FOURTH SECTION
CASE OF WAINWRIGHT v. THE UNITED KINGDOM
(Application no. 12350/04)
JUDGMENT
STRASBOURG
26 September 2006
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Wainwright v. the United Kingdom,
The European Court of
Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr M.
Pellonpää,
Mr R. Maruste,
Ms L. Mijović,
Mr J.
Šikuta, judges,
and Mr T.L. Early, Section
Registrar,
Having deliberated in private on 13 December 2005 and on
5 September 2006,
Delivers the following judgment, which was adopted on the
last mentioned date:
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 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 Ian Christie, a barrister practising in London.
The United Kingdom Government (“the Government”) were
represented by their Agent, Mr Derek Walton of the Foreign and
Commonwealth Office, London.
- The applicants complained that they were strip-searched
when seeking to visit a relative in prison, invoking Articles 3 and 8
of the Convention, and that they 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 Court declared
the application admissible.
- The applicant, but not the Government, filed further
written 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,
was a United Kingdom national, who was born in 1953 and lived in
Leeds. Her son was the second applicant, Mr Alan
Wainwright, a United Kingdom national, born in 1975 and living in
Leeds. He had 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, Leeds, 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, making the first applicant 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 widen 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 returning
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 21 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 previous 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 hyper-vigilance.
- Dr Sims concluded that the second applicant was
suffering from PTSD (scoring 15 on a scale devised form DSM IV of the
American Psychiatric Association Diagnostic and Statistical Manual
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) for two reasons. Firstly, the trial judge
held that their strip searching was an invasion of their privacy
exceeding what was necessary and proportionate to deal with the drug
smuggling problem (at paras. 105-8). Although he accepted that there
were serious drugs 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 (at para. 100). 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 para-suicide 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 Woolf C.J. 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, Buxton L.J. 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
to the second applicant for battery of a total of GBP 3,750.
- 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 coming 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
Hoffman, 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 J.
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 Hoffman 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 E.H.R.R. 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.
33. 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.
34. 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.
35. 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.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
- Section 47(1) of the Prison Act 1952 allows the
Secretary of State for the Home Department to lay down rules relating
to the management of prisons:
“The Secretary of State may make rules for the
regulation and management of prisons, remand centres, young offenders
institutions or secure training centres respectively, and for the
classification, treatment, employment, discipline and control of
persons required to be detained therein.”
- Pursuant to this power, the Secretary of State has
issued the Prison Rules. Rule 86 § 1 of the Prison Rules
(consolidated January 1998), which was in force at the relevant time,
provided:
“Any person or vehicle entering or leaving a
prison may be stopped, examined and searched.”
- The details of the grounds for stopping and searching
visitors and the procedure to be followed were set out at the
relevant time in a document entitled “Strategy and
Procedures of Searching at Leeds Prison”. This document is
not available to the public. The relevant paragraphs (as found by the
Court of Appeal at paragraph 18) are as follows:
“1.2.1 – Searches will be conducted in as
seemly and sensitive manner as is consistent with discovering
anything concealed.
No person will be strip-searched in the sight of anyone
not directly involved in the search.
A person who refuses to be searched will be denied
access to the prison or detained in accordance with s.1.2.7.
1.2.5 – Strip-searching of visitors is not
permitted except in the circumstances specified in 1.2.7 and then
only if police attendance is not possible. In cases where
strip-searches of visitors are necessary it is preferable that this
is done by the police.
1.2.6 – A visitor who refuses to co-operate with
the search procedures will be advised that the failure to comply will
result in exclusion from the prison.
1.2.7 – If the duty governor sanctions a
strip-search, the visitor should be taken to a room which is
completely private and informed of the general nature of the
suspected article.”
- A summary of the procedure to be followed during
strip-searches at the prison was set out on the back of the consent
forms. The consent form (F2141) provided as follows:
“Appendix F: Notice for the information of
visitors or other persons entering an establishment
Strip Search
Please read carefully
The Governor has directed that, for the reasons
explained to you, you should be strip-searched.
The police have been informed but cannot come to deal
with the matter. The search will therefore be carried out by prison
staff.
The procedure for the search is explained overleaf.
Please sign below if the search is taking place with
your consent.”
- Above the line to be signed by the person being
searched appeared the following:
“I have read this notice (or it has been read to
me) and I understand it.
I agree to be strip-searched by prison staff.”
- The summary of the procedures to be followed appeared
overleaf:
“Procedures for a strip-search
Staff and visitors
Two officers will be present. No person of the opposite
sex will be present.
You will not be required to be fully undressed at any
stage.
You will be asked to remove clothes from half of your
body and pass them to an officer so that they may be examined. Your
body will then be examined briefly so that the officers can see
whether anything is concealed. The clothes will then be returned to
you without delay and you will be given time to put them on.
The procedure will then be repeated for the other half
of your body.
The soles of your feet will be checked.
When your upper body is undressed, you may be required
to hold your arms up.
When your lower body is undressed, you may be required
to position yourself in such a way as to enable staff to observe
whether anything is hidden in the genital or anal areas. Your body
will not be touched during this process.
If you have long hair, it may be necessary for an
officer to search it. It may also be necessary for an officer to
check your ears, and mouth. You will not be touched otherwise.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION
- The applicants submitted that the strip-searching
infringed Article 3 and/or Article 8 of the Convention.
Article 3 of the Convention provides:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
Article 8 of the Convention provides as relevant:
“1. Everyone has the right to respect
for his private ... life ...
2. There shall be no interference by a public
authority with the exercise of this right except such as is in
accordance with the law and is necessary in a democratic society in
the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime,
for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
A. The parties' submissions
1. The applicants
a. Article 3
- The applicants submitted that members of the public
such as themselves, not suspected of a criminal offence, were
entitled to a more relaxed regime than convicted prisoners. There was
no suspicion that they were carrying drugs nor any convincing basis
for suspicion that their relative was taking drugs or heavily
involved in the supplying of drugs. No drugs had been found on
Patrick O'Neill after a search and no information given concerning
his mandatory drugs test. They rejected the Government position that
a search was justified simply because of the general drugs problem in
the prison and the contention that the applicants could realistically
have made objection to the procedures adopted during the search. It
would have served no point for the first applicant to request the
blind to be drawn where such request did not have to be complied with
and the prison officers were ignoring her questions. They submitted
that the conduct of the prison officers departed from procedure to
such an extent that it was beyond mere sloppiness and disclosed
humiliation for questionable motives. As well as the improper
touching of the second applicant and the failure to provide them with
the consent forms before the search, they referred to the fact that
at one point the second applicant was entirely naked and the first
applicant was effectively naked (underwear round her ankles and vest
held above her breasts); and though the applicants were only searched
by prison officers of their own gender, the first applicant suspected
that she could be seen through the window by people outside. The
experience was highly distressing and constituted degrading treatment
contrary to Article 3 in the circumstances.
b. Article 8
- The applicants submitted that Article 8 was engaged as
they were seeking to visit a member of their family, the first
applicant's son and the second applicant's half-brother and
emphasised the importance of the visiting regime in prison for
maintaining family links. They denied that there was any element of
waiver in the fact that they did not refuse to undergo the searches,
pointing out that the domestic courts found no real consent in law.
They had to comply with the condition in order to exercise their
right to visit and it was unrealistic to assert that they could have
objected to the way in which the searches were carried out.
- The applicants argued that that the searches were not
“in accordance with the law” as the Prison Rules were not
drafted with sufficient precision to enable persons to know the
reasons when they might be subjected to a search or the procedure to
be followed. Nor were the searches proportionate. They rejected the
claimed wide margin of appreciation, emphasising the particularly
invasive nature of the interference. There was no justification for a
blanket order of search which regarded these applicants as a risk.
Notwithstanding the difficulty of identifying drugs smugglers, they
argued that the authorities should make a reasonable attempt to
identify the likely suspects and the low-risk categories of visitors.
It was inherently unlikely that a middle-aged woman and a handicapped
person who required constant supervision would attempt to bring in
drugs. The manner in which the searches were carried out in breach of
the prison's own internal guidelines were also elements rendering the
interferences disproportionate.
2. The Government
a. Article 3
- The Government submitted that the searches did not
constitute treatment of sufficient severity to violate Article 3,
pointing to the domestic courts' negative findings under that
provision and the comments of the Lord Chief Justice who had enormous
experience of prison matters. They emphasised that there was no
intention to humiliate, that the search was carried out in good faith
for the legitimate object of searching for drugs in a prison with a
serious drugs problem; that it was relatively brief; that the
applicants were given the choice to leave without being searched and
at no point voiced any complaint or objection. If the first applicant
had felt strongly about the blinds not being drawn, she could have
asked for them to be closed.
- The Government argued that while it was true that the
applicants had not previously been caught bringing in drugs or even
visited before it remained the case that visitors were a major source
of drugs and all sorts of unlikely visitors had been known to bring
in drugs. There had been reasonable grounds for believing that
Patrick O'Neill had been obtaining illicit drugs, namely observations
as to his physical comportment, which justified the search of his
visitors. The aspects of the search which the applicants argued as
aggravating the procedure were not, in their view, grossly
humiliating or of any significant degree of severity. It was accepted
that the physical touching of the second applicant should not have
occurred, but it did not last more than a few seconds and there was
no intention to humiliate.
b. Article 8
- The Government emphasised that the applicants had been
given a choice as to whether to be searched in order to see their
relative and pointed out that the applicants had voluntarily
undressed and had not been subjected to any threats or coercion. If
at any time they had taken exception to the procedure adopted during
the search they could have declined to continue. They submitted that
if they had chosen not to be searched this would not have involved
any interference with their Article 8 rights, pointing out that the
relative was an adult and the lack of any visit in the prior four
months indicated the lack of closeness of the relationship.
- The Government submitted that even assuming that there
had been an interference with Article 8 rights the measure had been
in accordance with the law, the Prison Rules setting out an
accessible and sufficiently precise basis in law. They disputed that
the lack of access to or compliance with internal prison guidelines
(save as regarded the battery inflicted on the second applicant) in
any sense deprived the searches of their lawfulness.
- The Government further argued that the searches were
proportionate, serving the purpose of preventing crime and protecting
the health of prisoners. There was a serious drugs problem, visitors
were suspected of bringing in drugs and there were reasonable grounds
for believing that their relative had been obtaining illicit drugs. A
balance had to be struck between the potential rights of visitors and
the rights of others to be protected from drugs in which a wide
margin of appreciation ought to be afforded. Finally the way in which
the searches were conducted did not give rise to a violation. They
pointed out that the first applicant could have asked for the blinds
to the room to be pulled down and the fact that more than one half of
the body was exposed at a time was not so much greater an invasion
than that inherent in the strip-search in the first place.
B. The Court's assessment
1. General principles
- Ill-treatment must attain a minimum level of severity
if it is to fall within the scope of Article 3 of the Convention. The
assessment of this minimum level of severity is relative; it depends
on all the circumstances of the case, such as the duration of the
treatment, its physical and mental effects and, in some cases, the
sex, age and health of the victim. In considering whether a treatment
is "degrading" within the meaning of Article 3, the Court
will have regard to whether its object is to humiliate and debase the
person concerned and whether, as far as the consequences are
concerned, it adversely affected his or her personality in a manner
incompatible with Article 3. Though it may be noted that the absence
of such a purpose does not conclusively rule out a finding of a
violation (Peers v. Greece, no. 28524/95, §§ 67-68,
74). Furthermore, the suffering and humiliation must in any event go
beyond the inevitable element of suffering or humiliation connected
with a given form of legitimate treatment or punishment, as in, for
example, measures depriving a person of their liberty (see, Kudła
v. Poland [GC], no. 30210/96, §§93-94, ECHR 2000 XI,
Valašinas v. Lithuania, no. 44558/98, § 102,
ECHR 2001 VIII; Jalloh v. Germany [GC], no. 54810/00,
§ 68, 11 July 2006).
- The Court has already had occasion to apply these
principles in the context of strip and intimate body searches. A
search carried out in an appropriate manner with due respect for
human dignity and for a legitimate purpose (see mutatis mutandis,
Yankov v. Bulgaria, no. 39084/97, §§166-167, ECHR
2003 XII where there was no valid reason established for the
shaving of the applicant prisoner's head) may be compatible with
Article 3. However, where the manner in which a search is carried out
has debasing elements which significantly aggravate the inevitable
humiliation of the procedure, Article 3 has been engaged: for
example, where a prisoner was obliged to strip in the presence of a
female officer, his sexual organs and food touched with bare hands
(Valašinas, cited above, § 117) and where a search
was conducted before four guards who derided and verbally abused the
prisoner (Iwańczuk v. Poland, no. 25196/94, § 59,
15 November 2001). Similarly, where the search has no established
connection with the preservation of prison security and prevention of
crime or disorder, issues may arise (see, for example, Iwańczuk,
cited above, §§ 58-59 where the search of the applicant, a
model remand prisoner, was conducted on him when he wished to
exercise his right to vote; Van der Ven v. the Netherlands,
no. 50901/99, §§ 61-62, ECHR 2003 II, where the
strip-searching was systematic and long term without convincing
security needs).
- Where a measure falls short of Article 3 treatment, it
may, however, fall foul of Article 8 of the Convention, which, inter
alia, provides protection of physical and moral integrity under
the respect for private life head (Costello-Roberts v. the United
Kingdom, judgment of 25 March 1993, Series A no. 247 C,
§ 36; Bensaid v. the United Kingdom, no. 44599/98,
§ 46, ECHR 2001 I). There is no doubt that the
requirement to submit to a strip-search will generally constitute an
interference under the first paragraph of Article 8 and require to be
justified in terms of the second paragraph, namely as being “in
accordance with the law” and “necessary in a democratic
society” for one or more of the legitimate aims listed therein.
According to settled case-law, the notion of necessity implies that
the interference corresponds to a pressing social need and, in
particular that it is proportionate to the legitimate aim pursued
(see e.g. Olsson v. Sweden, judgment of 24 March 1988, Series
A no. 130, § 67).
2. Application in the present case
- The Court notes that the applicants were visitors to
the prison, intending to exercise their Article 8 right to see a
close relative. There was no direct evidence to connect them with any
smuggling of drugs into the prison, in particular as this was the
first time that they had visited the prison. However, it has no
reason to doubt the Government's contention that there was an endemic
drugs problem in the prison and that the prison authorities had a
suspicion that the applicants' relative had been taking drugs. In
these circumstances the Court considers that the searching of
visitors may be considered as a legitimate preventive measure. It
would emphasise nonetheless that the application of such a highly
invasive and potentially debasing procedure to persons who are not
convicted prisoners or under reasonable suspicion of having committed
a criminal offence must be conducted with rigorous adherence to
procedures and all due respect to their human dignity.
- In the case of these applicants, it has been found by
the domestic courts that the prison officers who carried out the
searches had failed to comply with their own regulations and had
demonstrated “sloppiness”. In particular, it appears that
the prison officers did not provide the applicants with a copy of the
form which set out the applicable procedure to be followed before the
search was carried out, and which would have put them on notice of
what to expect and permitted informed consent; they also overlooked
the rule that the person to be searched should be no more than
half-naked at any time and required the second applicant to strip
totally and the first applicant to be in a practically equivalent
state at one instant. It also appears that the first applicant was
visible through a window in breach of paragraph 1.2.7 of the
applicable procedure (see paragraph 28 above). The Government have
not contradicted her assertion in that respect, saying that she
should have asked for the blinds to be drawn. It is however for the
authorities, not the visitor, to ensure the proper procedure is
followed.
- The Court notes that 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, save in
the case of the second applicant. That aspect was found to be
unlawful by the domestic courts which gave damages for the battery
involved; the second applicant cannot claim any longer to be victim
of this element and it is excluded from the Court's assessment. The
treatment undoubtedly caused the applicants distress but does not, in
the Court's view, reach the minimum level of severity prohibited by
Article 3. Rather the Court finds that this is a case which falls
within the scope of Article 8 of the Convention and which requires
due justification under the second paragraph of Article 8 (see
paragraph 29 above).
- As regards the criteria of "in accordance with
the law" and "legitimate aim", the Court is not
persuaded by the applicants that these were not complied with. The
domestic courts found that the breach of internal procedure did not
disclose any unlawfulness (battery aside) and the Court does not
perceive any basis for finding unlawfulness in the broader Convention
sense. It has accepted above that the search pursued the aim of
fighting the drugs problem in the prison, namely the prevention of
crime and disorder.
- On the other hand, it is not satisfied that the
searches were proportionate to that legitimate aim in the manner in
which they were carried out. Where procedures are laid down for the
proper conduct of searches on outsiders to the prison who may very
well be innocent of any wrongdoing, it behoves the prison authorities
to comply strictly with those safeguards and by rigorous precautions
protect the dignity of those being searched from being assailed any
further than is necessary. They did not do so in this case.
- Consequently, the Court finds that the searches
carried out on the applicants cannot be regarded as "necessary
in a democratic society" within the meaning of Article 8
paragraph 2 of the Convention. There has been, accordingly, a breach
of Article 8 of the Convention in that regard.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Article 13 of the Convention provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. The parties' submissions
- The applicants submitted that English law was
deficient in its ability to provide any or any effective remedy for
the violations in this case. The damages received by the second
applicant were on the low side and he remained a victim of breaches
of Articles 3 and 8 and should receive full compensation for the harm
caused.
- The Government submitted that that there was no
arguable claim or basis for a separate finding of a violation of this
provision. In any event, they pointed out that since the coming into
force of the Human Rights Act 1998 any violation arising from similar
facts could give rise to a remedy under that Act.
B. The Court's assessment
53. Article 13 requires a remedy in domestic law in respect of
grievances which can be regarded as “arguable” in terms
of the Convention (see, for example, Boyle and Rice v. the United
Kingdom, judgment of 27 April 1988, Series A no. 131,
pp. 23-24, § 54). While it does not go so far as to guarantee a
remedy allowing a Contracting State's laws to be challenged before a
national authority on the ground of being contrary to the Convention
(see Costello-Roberts v. the United Kingdom, judgment of
25 March 1993, Series A no. 247-C, p. 62, § 40), where an
applicant has an arguable claim to a violation of a Convention right,
however, the domestic regime must afford an effective remedy (ibid.,
p. 62, § 39).
- In light of the finding of a violation of Article 8
above, the complaint is clearly arguable. The question which the
Court must therefore address is whether the applicants had a remedy
at national level to “enforce the substance of the Convention
rights ... in whatever form they may happen to be secured in the
domestic legal order” (see Vilvarajah and Others v. the
United Kingdom, judgment of 30 October 1991, Series A no. 215,
pp. 38-40, §§ 117-27).
- While it is true that the applicants took domestic
proceedings seeking damages for the searches and their effects they
had on them, they were unsuccessful, save as regards the instance of
battery on the second applicant. As stated above, the Court considers
that the finding of unlawfulness of that action and the provision of
compensation deprived the second applicant of victim status for the
purposes of Article 8 in that regard; it finds no basis, under
Article 13 of the Convention, to consider that the amount of
compensation awarded by the domestic courts was so derisory as to
raise issues of the effectiveness of the redress. As regards the
other objectionable elements of the strip searches, the Court
observes that the House of Lords found that negligent action
disclosed by the prison officers did not ground any civil liability,
in particular as there was no general tort of invasion of privacy. In
these circumstances, the Court finds that the applicants did not have
available to them a means of obtaining redress for the interference
with their rights under Article 8 of the Convention.
- There has therefore been a violation of Article 13 of
the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicants claimed compensation for non-pecuniary
damage, referring to the after-effects of the searches which lasted
at least eighteen months and from which they had still not fully
recovered. They pointed out that the trial judge had considered their
case appropriate for an award of aggravated damages. Taking into
account that the effects were more severe on the second applicant but
also that he had received an award for battery, they claimed 20,000
pounds sterling (GBP) each.
- The Government submitted that these sums were
excessive and not supported by the jurisprudence of the Court in
other strip-search cases, some of which included other violations.
They considered that 3,000 euros (EUR) must be regarded as the upper
limit.
- The Court does not, as a matter of practice, make
aggravated or exemplary damages awards (see, for example, Akdivar
and Others v. Turkey (former Article 50), judgment of 1 April
1998, Reports 1998 II, § 38). Having regard to
the undoubted and more than transient distress suffered by the
applicants and to the awards made in other strip search cases, the
Court awards EUR 3,000 each to the first and second applicants.
B. Costs and expenses
- The applicants claimed legal costs and expenses of a
total of GBP 29,646.25, inclusive of value-added tax (VAT) of
which GBP 9,705.50 related to their solicitor (including 144
letters received or sent and 23.5 hours of work on perusing and
preparation) and GBP 19,940.75 to counsel.
- The Government did not accept that these sums had been
necessarily incurred or that they were reasonable as to quantum. They
considered the hourly rate of GBP 200 was excessive for a solicitors'
firm outside London and that the number of hours claimed was not
reasonable. An automatic charge of GBP 20 for each occasion of
sending or receiving correspondence was also unreasonable. They
proposed GBP 2,500 for solicitors' fees and pointed out that if the
applicants' complaints were only partly successful that should be
taken into account.
- The Court recalls that that only legal costs and
expenses found to have been actually and necessarily incurred and
which are reasonable as to quantum are recoverable under Article 41
of the Convention (see, among other authorities, Nikolova v.
Bulgaria [GC], no. 31195/96, 25 March 1999, § 79, and Smith
and Grady v. the United Kingdom (just satisfaction),
nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). It notes
the Government's objections and finds that the claims may be regarded
as unduly high given the procedure adopted in the case and the
amounts awarded in other comparable United Kingdom cases. Taking into
account the amount paid by way of legal aid by the Council of Europe,
it awards EUR 17,500 for legal costs and expenses inclusive of VAT.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Holds that there has been no violation of
Article 3 of the Convention;
- Holds that there has been a violation of
Article 8 of the Convention;
- Holds that there has been a violation of
Article 13 of the Convention;
- Holds
(a) that the respondent State is to pay the applicants,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, the following amounts, to be converted into the national
currency of the respondent State at the rate applicable at the date
of settlement:
(i) EUR 3,000 (three thousand euros) to each applicant in
respect of non-pecuniary damage;
(ii) EUR 17,500 (seventeen thousand five hundred euros) in
respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicants' claim
for just satisfaction.
Done in English, and notified in writing on 26 September 2006,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early J. Casadevall
Registrar President
