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Wainwright v/s Home Office

This article presents a comprehensive and detailed analysis of the legal case Wainwright v. Home Office using the FIRAC Method:
  • Facts,
  • Issues,
  • Rule Of Law,
  • Analysis And
  • Conclusion

Facts
In Wainwright v. Home Office, 1 Patrick O' Neill was being held in the Leeds prison on charges of murder. It was suspected by the authorities that he had been supplying and dealing drugs.

Since the source of contraband was unknown, and it is fairly common for visitors to sneak in the drugs, it was instructed that anyone visiting the prisoner would have to be strip searched first.

Rule 86(1) of the Prison Rules 1964 (consolidated 1998) allows to search any person entering a prison in general terms.

Leeds Prison designed some internal rules for the search. It was decided that the search should be in a private room with two officers who must be of the same sex as the visitor. First, the upper body is to be exposed by the visitor, followed by the lower, but at no point in time, they had to be completely naked It was duly mentioned that no part of the visitor's body can be touched, with exception of the hair, ears and mouth. A consent form has to be signed by the visitor, outlining the details of the procedure before they are strip searched.

The Claimants were the mother, Mrs. Wainwright and the step brother of the prisoner, named Alan, who were strip-searched for drugs during the prison, in breach of the Prison Rules.

During trial, evidence found that both of them had been made to uncover all parts of their bodies and had not been provided with the consent form (it had been handed post the completion of the search). In addition, the room wherein Mrs. Wainwright was searched had an un-curtained window and hence was not private and one of the prison officers touched Alan's penis to lift his foreskin.

Alan already suffered from cerebral palsy and was mentally impaired. After the incident, he developed Post Traumatic Stress Disorder and Mrs. Wainwright suffered from emotional distress.

Issue
  1. The legal question in this case is whether trespass to the person was committed against both the claimant or not.
  2. Whether trespass to the person along with battery was committed against the second claimant or not.
  3. Is invasion of privacy tortuous under English Common Law?

Rule of Law
  1. The rule that applies in this case relates to trespass to the person. Trespass to the person requires direct interference with a person's body or liberty.
  2. Battery is a form trespass to the person. The elements of battery are:
    1. an act;
    2. by which contact is made with the claimant's body;
    3. the contact must be direct;
    4. the contact with the claimant's body must be hostile; and
    5. the claimant did not consent to the contact. 2

Analysis
  1. In Letang v Cooper 3 trespass was defined as not a cause of action but a form of action. In Wilkinson v Downton4 it was contended that using words that calculated to bring about physical including psychiatric harm also constituted trespass and so it was held by Judge McGonigall of Leeds County Court that asking the Wainwrights to take off their clothes was also a form of trespass to the person.

    However, The Court of Appeal did not concur with this judgment and did not consider the conduct of the police officers wrongful. Furthermore, the Lords upheld the aforementioned notion by stating that the Wilkinson case does not provide remedy for distress amounting to psychiatric injury as the stated case has no connection with trespass to person.
     
  2. In Collins v. Wilcock5, battery was defined as any intentional physical contact which was not generally acceptable in the ordinary conduct of daily life. And so it was established that the prison officers' poking Alan's armpits, touching his penis and pulling back his foreskin, without his consent amounted to battery.
  3. Privacy is the right to be left alone 6
    The claimants contended that the House should recognize a remedy for invasion of privacy in this case. They submitted several judgments of the European Court of Human Rights which stated that a valid remedy for Article 8 of the European Convention on Human Rights7 was not provided by the English Law.

    It was established in Kaye v Robertson8, that there exists no tort of invasion of privacy in English law. In Campbell v MGN Ltd.9 it was laid down that the concept of privacy is an underpinning of the common law of breach of confidence and its invasion was not a tort in itself.

Conclusion
It was conceded that battery took place with the second claimant. Additionally, The Court of Appeal upheld the Home Office's appeal against the finding of trespass. However, it dismissed the first claimant's claim and reduced the award of damages to Alan, the second claimant by 750. Furthermore, the Court upheld that there nothing encompassing E.C.H.R's jurisprudence which needed any principle regarding privacy. It also stated that the coming into force of the Human Rights Act, 1998 weakened the argument that a general tort of invasion of privacy at common law is required to fill gaps in existing remedies.

End-Notes:
  1. Wainwright and another v. Home Office, [2003] UKHL 5
  2. 19 Edwin Peel, James Goudkamp, Winfield And Jolowicz 4-007
  3. Letang v Cooper, [1965] 1 QB 232, 243.
  4. Wilkinson v Downton [1897] 2 QB 57
  5. Collins v Wilcock [1984] 1 WLR 1172, 1178
  6. Samuel D. Warren; Louis D. Brandeis, The right to privacy, 4 Harvard LR 193
  7. Convention for the Protection of Human Rights and Fundamental Freedoms, Article(?), No. 4.XI, Rome, (1950).
  8. Kaye v Robertson & Anor, [1990] EWCA Civ 21, [1991] FSR 62
  9. Campbell v MGN Ltd [2003] QB 633

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