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Leader: Tackling violence

MI5 chief warns of terror threat to food industry

Law lords order inquiry into jail murder

Gun crime rise 'has peaked'

Why customs called Betty out of the tearoom

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Law lords rule there is no right to privacy

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Special report: House of Lords  |  Special report: home affairs

Law lords rule there is no right to privacy

Decision disappoints mother and son strip-searched in jail

Clare Dyer, legal correspondent
Friday October 17, 2003
The Guardian

Five law lords yesterday rejected an attempt to establish that a right exists under English law to sue for invasion of privacy.

The ruling, which had been keenly awaited by lawyers, establishes that there is no "freestanding" right to privacy in English law. Instead, those seeking damages when their privacy is invaded - including celebrities such as Catherine Zeta-Jones and Michael Douglas - will have to bring their cases under other, well-established types of action, such as breach of confidence.

The judges upheld a court of appeal decision that Mary Wainwright, 49, should receive no damages for a strip-search while visiting Armley prison in Leeds, and that her son, Alan, 25, was entitled to only £3,750 over the incident in January 1997. The two were strip-searched while visiting Mrs Wainwright's son and Alan's half-brother, Patrick O'Neill, who was awaiting trial on a murder charge and was suspected of dealing in drugs while in prison.

The search was carried out in breach of prison rules, which stipulate that strip-searches must take place in a completely private room, the person being searched must sign a consent form beforehand, only half the body should be naked at a time, and no part of the body except hair, ears and mouth should be touched.

When the case went to the high court, the judge accepted evidence from the pair that the room used to search Mrs Wainwright had an uncurtained window, that mother and son had been asked to uncover virtually all their bodies at the same time, that they were not given the consent form until after the search, and that Alan's penis had been touched and the foreskin pulled back. The judge awarded Mrs Wainwright £2,600 and Alan £4,500, but the appeal court overturned the ruling in her favour and reduced her son's damages to £3,750. The court of appeal ruled that the prison officers had not committed any wrongful act which could give rise to damages, apart from battery, in unlawfully touching Alan's penis.

A psychiatrist concluded that Alan, who has physical and learning difficulties, had been so affected by the experience that he suffered post-traumatic stress disorder. Mrs Wainwright had suffered emotional distress but no recognised psychiatric illness.

Lord Hoffmann said strip-searching was controversial because "having to take off your clothes in front of a couple of prison officers is not to everyone's taste".

Leeds prison had rules designed to reduce the embarrassment as far as possible which had not been complied with in the case of the Wainwrights. But breach of the rules in itself did not give a right to claim damages.

Lawyers for Mrs Wainwright and her son argued that English law should now recognise a separate right to sue for breach of privacy. But Lord Scott said: "Whatever remedies may have been developed for misuse of confidential information ... and for various other situations in which claimants may find themselves aggrieved by an invasion of what they conceive to be their privacy, the common law has not developed an overall remedy for the invasion of privacy."

A decision on whether damages would be awarded for a similar incident today, without any element of battery - now that the Human Rights Act has come into force - would have to await another case, he said.

 Special reports
Policing crime

 Full text
Inspector's report on Dartmoor prison (pdf)

 Useful links
Home Office
HM prison service
Scottish prison service
Prisons inspectorate
Howard League for Penal Reform
Reform Remand campaign - Prison Reform Trust
International Corrections and Prisons Association

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