![handle is hein.journals/amcrae60 and id is 1 raw text is: Contents
Issue 60 Tulv/Auuust 2005
WAINWRIGHT RECONSIDERED: PRISONS,
FAMILIES AND THE HUMAN RIGHTS ACT
Questions of the legal rights of prisoners continue to
occupy the courts, and there is increased judicial
consideration of questions of the rights of prisoners'
partners and children. Prisoners' family members occupy
an uncertain legal position: they are technically free but
their family lives are underpinned by the decisions of
prison governors and the courts. The case of Wainwright v
Home Office [2003] UKHL 53 illustrates the inadequacy of
existing legal categories for dealing with questions of rights
and dignity in relation to prisoners' families. This case
relates to conduct which took place before the Human
Rights Act 1998 came into force: it is tempting to speculate
whether cases such as this will be decided differently in the
future under the aegis of the HRA (see Lester, M (2004)
Wainwright v Home Office, Case Comment, EHRLR, vol. 2,
pp193-99; Morgan, J (2004) Privacy Torts: Out with the
Old, Out with the New, Law Quarterly Review, vol 120, pp
393-98).
Mrs Wainwright, and her disabled son, Alan, went to
visit Alan's half-brother who was a remand prisoner. The
prison authorities suspected the prisoner of dealing drugs,
so required his visitors to be strip-searched. The searches
were governed by the prison's internal code of practice.
Alan alleged that the person who searched him had
touched his penis and lifted his foreskin. Mrs. Wainwright
believed that she could be seen by people in the block
opposite, since it was dark outside and the blinds were not
closed: she was stripped naked with her knickers around
her ankles and her vest above her breasts (see Lester, op cit).
They were not asked to sign consent forms until afterwards
and were told that if they did not consent they might not
be allowed to visit. Nothing was found during the searches.
Mrs Wain right complained of the inflicti n of emotional
distress; Alan claimed to have suffered post-traumatic
stress disorder. Alan wa awarded damages at irst instance
for the trespass to the person (seb Codd, II (20005
Integrating Empirical Research: Prisoners' Rights, the
J-aw and the Family, IALS, WG IHart Legal Workshop,
June 2005).
The Wainwrights' ultimate appeal to the I louse of Lords
was dismissed on the grounds that any tort based on the
case of Wilkinson v Downton [1897] QB 57 required actual
intention or recklessness as to the causing of harm whereas
the officers' conduct amounted to mere sloppiness.
Second, the Lords rejected arguments for the existence of
a general tort of the invasion of privacy. Third, Hoffman LJ
rejected arguments that if the English courts did not create
a tort of invasion of privacy then the ECHR would find a
violation of Articles 3 and 8 (See Foster, S (2005) Prison
Conditions, Human Rights and Article 3 ECHR, Public
Law, spring, pp 35-44). Following the precedent from
Malone v Metropolitan Police Commissioner [1979] Ch 344 it
was not enough for Mrs Wainwright to argue that the
searches were conducted without statutory authority. With
the exception of the actual battery to Alan, for which he
was awarded damages, there had been no tortious conduct,
and thus no liability.
Both Hoffman LJ and Scott LJ seemed to view distress
as a trivial kind of harm. Although described as a glaring
example of degrading behaviour by a public authority
Scott LJ agreed with Lord Hoffman that the conduct was
not tortious, and compared the facts to the humiliating
initiation ceremonies held by some groups and institutions
in which, he argued, it was not appropriate for the law of
tort to intervene. This is shocking to the reader familiar
with the literature on the experiences of prisoners'
families, for whom visits are a source of profound stress
even in the absence of strip-searches. The law of privacy
seems ill-fitted to respond to the experiences of the
Wainwrights, but at the time there was no other legal
avenue open to them. It has been suggested that, now the
HRA is in force, Article 8 considerations may be more
important in future cases. However, Wainwright illustrates
the problems of seeking redress through the courts for the
negative experiences of prisoners' families, and reflects a
robust rather than empathetic understanding of these
issues. It remains to be seen whether the Human Rights
Act means that, in future, such cases will be decided
differently.
Helen Codd
Principal Lecturer in La, Lancashire Law School, University of
Central Liancashire: 1w ii esearch Meo IALS](ViewImageLocal?handle=hein.journals/amcrae60&div=1&collection=&method=preview&ext=.png&size=3)
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