Wainwright v Home Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,LORD JUSTICE BUXTON |
| Judgment Date | 20 December 2001 |
| Neutral Citation | [2001] EWCA Civ 2081 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2001/1008 |
[2001] EWCA Civ 2081
The Lord Chief Justice of England and Wales
Lord Justice Mummery and
Lord Justice Buxton
Case No: B3/2001/1008
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Robin Tam & Mr K Morton (for judgment) (instructed by Treasury Solicitor appeared for the Appellant)
Mr David Wilby QC & Mr Ashley Serr (instructed by David A Reston, York appeared for the Respondent)
Lord Woolf CJ:
This appeal relates to a judgment of HH Judge McGonigal, given at the Leeds County Court on 23 April 2001. The claimants were a mother, Mrs Mary Wainwright, and her son, Alan Wainwright. The judge awarded basic and aggravated damages which were, in total, for the mother the sum of £2,600 and for the son the sum of £4,500. The damages were compensation for the manner in which they were strip-searched by prison officers when they went to Armley prison, Leeds in order to visit another son (Patrick O'Neill) of Mrs Wainwright.
The case raises difficult issues of law and the judge gave leave to appeal. The most important of those issues are identified by Mr Tam for the appellant, the Home Office, as being whether a person is liable in tort if he:
i) wilfully causes a person to do something calculated to cause harm to him, namely to infringe his legal right to personal safety;
ii) wilfully causes a person to do something to himself which infringes his right of privacy?
Additional issues were:
i) if such conduct was tortious, whether, on the facts of this case (a) it was negatived by consent or (b) protected by statutory authority;
ii) whether the complainants were entitled to rely on s.3 of the Human Rights Act 1998 notwithstanding that the conduct complained of occurred on 2 January 1997, before the Human Rights Act came into force.
HH Judge McGonigal gave a detailed and clear judgment both as to his findings of fact and the legal principles which he applied in this difficult case. It is therefore possible to rely on the judgment in order to explain the factual background and the issues.
FACTUAL BACKGROUND
At the time of the visit Alan Wainwright was 21 years of age. He suffers from cerebral palsy with a degree of mental impairment. He therefore sues as a patient by Mrs Wainwright, his litigation friend.
On the 2 January 1997 Mrs Wainwright and Alan arrived at the prison at about 6pm. They went through normal security checks and then waited with the other visitors prior to seeing Patrick. They were then approached by a number of prison officers and asked to accompany them. They then proceeded to the north gatehouse of the prison. On the way there, they were told they were to be strip-searched because they were suspected of bringing drugs in to the prison and if they refused they might be denied a visit to Patrick. At the gatehouse they were taken up to the first floor where they were separated.
Mrs Wainwright was strip-searched by two female prison officers in one room while Alan was searched by two male prison officers in another room. They were then allowed to visit Patrick.
Before a strip-search takes place, the person who is to be strip-searched is required to sign a consent form. There is no dispute that both claimants signed the form which is known as F2141. There was a dispute as to when they signed the form. The form reads as follows:
" 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.
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 prison officers who gave evidence said that the forms would have been signed prior to the search being undertaken in accordance with proper practice. Mrs Wainwright and Alan both said that they were asked to sign the forms after the search had been substantially completed. The judge preferred their evidence on this issue. He regarded Mrs Wainwright "as an honest witness who was doing her best to tell the truth as she remembered it". He felt the circumstances surrounding Alan's search supported his story.
The search was conducted at a time when it was dark outside and Mrs Wainwright believed that she could be seen by those who were in a single storey flat roofed administration block which was on the opposite side of the road or from that road. There were roller blinds on the windows of the room that she was in but the judge accepted her evidence that the blinds were not pulled down. Mrs Wainwright does not allege that she was touched by either of the female officers who searched her, but says that she felt threatened and that she was upset and worried. Alan said (and this the judge accepted) that during his search he was naked, a finger was poked into his armpits and that one prison officer went all round his body, lifted up his penis and pulled back the foreskin. The judge also found that Mrs Wainwright was correct in saying that there was a point when she was naked apart from knickers around her ankle and a vest held above her breasts. The judge also accepted that the officers had not known of Alan's learning difficulties before they had completed the strip-search of him-see paragraph 56 of his judgment. Paragraph 10 as currently drafted might, through ambiguity, give the erroneous impression that they were aware throughout the search procedure of Alan's learning difficulties. We would respectfully ask that consideration be given to clarifying this point. Mrs Wainwright describes how she was crying during the search and there is no doubt that she and Alan were very upset by what happened.
The judge also made the following relevant findings of fact:
i) there was a pressing problem involving the prevalence of illicit drugs within the prison;
ii) visitors in general were a major source of such drugs and that all visitors were suspected of bringing in drugs until it was proved otherwise because all sorts of unlikely visitors had been known to bring in drugs;
iii) there were reasonable grounds for believing that Mrs Wainwright's son, Patrick, had been obtaining illicit drugs.
iv) the claimants each consented to being strip-searched before they were searched although in each case they signed the consent forms after the search was complete or substantially complete;
v) the search of each of the complaints was not conducted in as seemly a manner as was consistent with discovering anything concealed;
vi) the officers honestly believed that they had a legal right to strip-search the claimants;
vii) Mrs Wainwright understood and was intended to understand that the officers had a legal right to strip-search the claimants;
viii) notwithstanding that each claimant consented to the strip-search, such consent was not a real consent because they were expressly told that if they did not consent the defendant would deny the claimants the proposed visit;
ix) further, such consent was not a real consent because it was represented to them that the officers had a legal right to strip-search them, which was untrue, although honestly believed;
x) any search under a power given by rule 86 of the Prison Rules 1964 was lawful only if it was conducted in as seemly a manner as was consistent with discovering anything concealed;
xi) the strip-search of the claimants was not a proportionate response to the objective of preventing that person from obtaining drugs from visitors and was therefore not permitted by that rule;
xii) the prison officers had no right to conduct a search.
The judge on these findings came to the conclusion that a tort of trespass to the person, consisting of wilfully causing a person to do something to himself which infringes his right to privacy had been committed against both claimants. In addition he concluded that the tort of trespass to the person, consisting of wilfully causing a person to do something calculated to cause harm to him, namely infringing his legal right to personal safety, had been committed against the second claimant.
There is no dispute now that the Home Office is liable to Alan for the physical handling which took place and that this amounted to battery. Nothing was found during the course of the searches.
As to injuries, the findings of the judge are not so clear. It appears that he accepted in the case of Mrs Wainwright there was exacerbation of existing depression and unpleasant memories of the incident. In the case of Alan, it appears that the judge found that he was suffering from post-traumatic stress disorder.
Both claimants sought exemplary and aggravated damages. The judge did not consider that it was an appropriate case for exemplary damages. He considered that it was an appropriate case in which to award aggravated damages. As aggravated damages, he awarded each claimant £1000.
THE STATUTORY AUTHORITY TO CONDUCT SEARCHES
The Prison Rules 1964 are made pursuant to s.47 of the Prison Act 1952. The parties accept that these rules applied to the search. The rule which is directly applicable is rule 86(1). This rule provides:
i) Any person or vehicle entering or leaving a prison may be stopped, examined and searched.
The very general terms of rule 86 have to be...
To continue reading
Request your trial
-
Dublin City Council v Fennell
... [2004] 2 IR 178;In re McKerr [2004] UKHL12, [2004] 1 WLR 807; R v Lambert [2001] UKHL 37, [2002] 2 AC. 545; Wainwright v Home Office [2002] QB 1334; Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712; Wilson v First County Trust Ltd. (No 2) [2003] UKHL 40; [2004] 1 AC......
-
OPO v MLA and Another
...either intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf CJ, as I read his judgment [2002] QB 1334, 1350, paras 50–51, might have been inclined to accept such a principle…" 76 However, I do not consider that Lord Hoffmann was actually decidin......
-
OPO (by his litigation friend) and another v Rhodes
...of harassment: Khorasandjian v Bush [1993] QB 727; Wong v Parkside Health NHS Trust [2001] EWCA Civ 1721, [2003] 3 All ER 932; Wainwright v Home Office [2001] EWCA Civ 2081, [2002] QB 1334 (CA), [2003] UKHL 53, [2004] 2 AC 406 56 In Khorasandjian v Bush the plaintiff obtained an injun......
-
Wainwright v Home Office
...of Cornhill Lord Hoffmann Lord Hope of Craighead Lord Hutton Lord Scott of Foscote HOUSE OF LORDS Session 2002-03 on appeal from: [2001] EWCA Civ 2081 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE LORD BINGHAM OF CORNHILL My Lords, 1 I have had the advantage of reading in draft ......