CASE OF WAINWRIGHT v. THE UNITED KINGDOM
(Application no. 12350/04)
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,
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:
I. THE CIRCUMSTANCES OF THE CASE
A. The search of the first applicant
B. The search of the second applicant
C. Effects of the searches
D. Civil proceedings
“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.”
“51. Article 8 is more difficult. Buxton J. thought, at  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  2 All ER 65.”
“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  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  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
“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.”
“Any person or vehicle entering or leaving a prison may be stopped, examined and searched.”
“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.”
“Appendix F: Notice for the information of visitors or other persons entering an establishment
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.”
“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.”
“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.”
I. ALLEGED VIOLATION OF ARTICLES 3 AND 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
b. Article 8
2. The Government
a. Article 3
b. Article 8
B. The Court's assessment
1. General principles
2. Application in the present case
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
“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
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).
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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;
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