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The Home Office v Mary Wainwright and Alan Wainwright

29 January 2002
The issues

Liability in tort for a deliberate act – Human Rights Act – statutory protection.

The facts

The Claimant mother and son were awarded basic and aggravated damages (£2,600.00 for the mother and £4,500.00 for the son) for the manner in which they were strip searched by Police Officers in Armley Prison, Leeds.

They were strip searched on the 2nd January 1997 when visiting Patrick O’Neil another son of Mrs Wainwright. Before the strip search they signed a form of consent. Alan Wainwright suffered from cerebral palsy with a degree of mental impairment.

The Judge found as a fact that there was a problem with regard to the supply of drugs within the prison by visitors and that there were reasonable grounds for believing that Patrick had been obtaining illicit drugs. The Judge found that the consent of each Claimant was not a real consent because they were expressly told that if they did not consent the Defendants would deny the Claimants the visit; moreover the Officers had told the Claimants that they had a legal right to strip search them which was untrue (although the Officers believed it honestly); any search under a power given by Rule 86 of the Prisoner Rules 1964 was lawful only if it was conducted “in as seemly a manner as was consistent with discovering anything concealed”. This was not so conducted. The Judge also found that the strip search was not a proportionate response to the objective of preventing that person getting drugs from visitors.

The Defendant appealed.

The decision

Human Rights

The Judge had found, basing his findings on the Judgment of Lord Justice Sedley in Douglas -v- Hello Limited that there was a right of privacy which extended from the tort of trespass and that Mrs Wainwright was entitled to protection under that right notwithstanding that she had suffered only the stress and humiliation and no physical injury. However, the Human Rights Act was not retrospective insofar as a claim could be based upon it as against a Public Authority. It could not be relied on to change substantive law by introducing a retrospective right to privacy which did not exist at common law.

Wilkinson -v- Downton

The Judge also relied on Wilkinson -v- Downton, a case in which the Defendant played a practical joke on the Claimant by telling her that her husband had met with a serious accident in which his legs had been broken. As a result she went into nervous shock. The case was decided on the basis that “a person who makes a false statement intended to be acted on must make made good the damage naturally resulting from it being acted on”. It was clear from Wright J’s Judgment that it was important that the act was wilful – nothing less than recklessness would do.

In Wang -v- Parkside Health NHS it was accepted that Wilkinson -v- Downton supported the existence of a tort of “intentional infliction of harm”. The Court rejected the view that the tort would be committed if there was deliberate conduct which foreseeably led to alarm or distress or anything short of recognised psychiatric illness.

The consequence had to be deliberate harm or harm to which the Defendant was reckless.

In this case however there was no finding that the Prison Officers were intending to cause or were reckless as to whether they caused harm.

The Appeal had to be allowed except as to the finding of battery (which had not been appealed). Mrs Wainwright’s claim was dismissed. In Alan’s case damages were reduced to £3,750.00.

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