EHRM, 26-09-2006, nr. 12350/04

The first applicant was taken by two female officers into a small room which had windows overlooking the road in front of the prison and the administration block beyond it. It was dark outside and the lights in the room were on. There were lights on in the building, making the first applicant believe that people were still working in the administration block. Although there were roller blinds on the windows, they were not pulled down. The first applicant was told to take off her jumper and vest. One of the officers searched them whilst the other officer walked around her, examining her naked upper body. She was then instructed to remove her shoes, socks and trousers, which she did. At this point, a third female officer entered the room. This officer asked where the consent forms were, and was told by one of the officers where to find them. In answer to a question from the first applicant, the third officer confirmed that the form was for the second applicant. The first applicant explained that it would be no use to him because of his learning difficulties, particularly with reading and understanding, and that someone else needed to be there to explain to him what was happening. The third officer then left and the search of the first applicant continued. By this time she was crying. She was standing naked apart from her underwear. On her request, she was returned her vest and allowed to put it back on. She was told to pull down her underwear which she did and then told to widen her legs. She was then told to take one leg out of her underwear so her legs could be spread wider. She was told to bend forward and her sexual organs and anus were visually examined. The officer inspecting her body then asked the first applicant to pull her vest up again, asking for it to be raised higher and higher until it was above her breasts. The first applicant asked why that was necessary since they had already inspected her top half. The officer ignored her and continued walking around her body. She was then told to put her clothes back on.

By the end of the search, the first applicant was shaking and visibly distressed. She believed that anyone outside the prison looking at the windows in the room where she was being strip-searched could have seen her in a state of undress. She was worried that if she protested too much she would not be allowed in to visit Mr O'Neill. She was also worried about what was happening to the second applicant. Although none of the officers touched her, she felt threatened by their actions and considered that she had no alternative but to comply with their instructions.

After she had been told to put her clothes back on, one of the officers approached the first applicant and asked her to sign the form to consent to a strip-search (F2141). Attached to the consent form is a summary of the procedure to be carried out. The first applicant told the officers that she might as well sign it as there was by that stage nothing else the officers could do to her and she then did so without reading it.

The second applicant was taken to a separate room by two male officers. At first he refused to go into the room but was told that he would not get to see his brother if he did not agree. Once in the room, one of the officers put on a pair of rubber gloves. This frightened the second applicant who feared that there would be a search of his rectum. As requested, he removed the clothes from the upper half of his body and they were searched. He was subjected to a finger search, which included poking a finger into his armpits. The prison officers then told the second applicant to remove the clothes from the lower half of his body. At first he refused to remove his boxer shorts. He was by is stage crying and shaking. He reluctantly removed his boxer shorts and was told to spread his legs. Because of his physical disability, he had to balance with one hand on the wall to do so. One of the prison officers looked all around his naked body, lifted up his penis and pulled back the foreskin. He was then allowed to get dressed.

After this, one prison officer left the room returning with a consent form. When presented with it, the second applicant explained that he could not read and that he wanted his mother to read it to him. The officers ignored this request and said that if he did not sign the form he would not be allowed in to visit his brother. He signed the form.

The applicants were led back to the prison to proceed with their visit. During the visit, the first applicant told Mr O'Neill what had happened. The first applicant went into the toilet where she cried and vomited about four times. The second applicant felt shaken and nervous and was upset. The applicants did not stay for the full length of their visit.

Regarding the first applicant, on returning home, she removed her clothes and bathed because she felt upset, angry and dirty. Because of her experience, she did not visit Mr O'Neill for a further four months. In October 1998, in the context of the civil proceedings, she was examined by Dr Sims, Professor of Psychiatry. At that time (approximately 21 months after the incident), the first applicant stated that she still thought about the strip-search about once a week, continued to get upset about it, remained angry about what had happened and had difficulty sleeping. Dr Sims considered that the severe upset that she had experienced in the prison made her existing depression (for which she was receiving medication at the time of the visit) worse, but that apart from recurrent intrusive recollections of her time at the prison and psychological distress at anything that resembled her previous experience, she did not show other symptoms of post-traumatic stress disorder (‘PTSD’). He concluded that as a result of her aversive experience in the prison, the first applicant would be more vulnerable to future traumatic events and more prone to depressive reaction.

As for the second applicant, on his return home from the visit, he went to his bedroom crying. For about five weeks after the incident, he would not see his girlfriend, baby son, friends or anyone else and spent large amounts of his time in his bedroom. He was also examined by Dr Sims in October 1998. At this time, he stated that he was still feeling bad about the incident, had difficulty sleeping and had nightmares about going into the room at the prison and of being strip-searched. He thought about being in prison almost continuously and broke out in a sweat and felt frightened when he recalled the incident. During a subsequent visit, he saw some of the same officers who had strip-searched him and became very frightened. In addition, he became afraid to leave the house alone and therefore stayed at home, only going out with his mother, the first applicant. He lost interest in his previous activities, showed irritability and hyper-vigilance.

Dr Sims concluded that the second applicant was suffering from PTSD (scoring 15 on a scale devised form DSM IV of the American Psychiatric Association Diagnostic and Statistical Manual where 10 would indicate presence of PTSD) and had a depressive illness. He found that both illnesses had been substantially caused by his strip-search experience. He found that the second applicant had experienced the strip-search as a threat to his physical integrity, believing that he was going to experience anal penetration, to which he had responded with fear and a feeling of hopelessness. His symptoms were severely impairing his ability for social functioning. Dr Sims concluded that even after recovery, the second applicant would remain vulnerable to further symptoms with lesser provocation than previously.

In April 2000, the second applicant was further examined by Dr Sims. He concluded that he was still suffering from post-traumatic stress disorder (which in fact was more severe, measuring 18 on the DSM scale) and depressive illness. He predicted some improvement, with appropriate treatment, within one to two years.

On 23 April 2001, the County Court upheld the applicants' civil claims against the Home Office holding that the searches constituted a trespass to the person which could not be justified by Rule 86 § 1 of the Prison Rules (see Relevant domestic law and practice) for two reasons. Firstly, the trial judge held that their strip searching was an invasion of their privacy exceeding what was necessary and proportionate to deal with the drug smuggling problem (at paras. 105-8). Although he accepted that there were serious drugs problems at the prison at the time of their visit and that there were reasonable grounds for believing that Patrick O'Neill had been obtaining illicit drugs (he referred to the report by a senior prison officer that his speech had been slurred and mannerisms incoherent), he held that the prison officers should not have searched the applicants as it would have been sufficient to have searched Mr O'Neill after they left. Secondly, the prison authorities had not adhered to their own rules. The judge rejected the applicants' submission that Article 3 was relevant, holding that although strip-searches were unpleasant, they did not amount to inhuman or degrading treatment (at para. 100). The trial judge accepted the diagnosis of the second applicant as suffering from PTSD, but did not think that his symptoms had lasted as long as the psychiatrist thought, and that the second applicant had substantially recovered from the effects of the strip-search by March 1998, when he made a para-suicide attempt. He awarded the first applicant a total of 2,600 pounds sterling (GBP) (comprising GBP 1,600 basic damages and GBP 1,000 aggravated damages) and the second applicant a total of GBP 4,500 (comprising GBP 3,500 basic damages and GBP 1,000 aggravated damages), the Home Office having conceded battery, following the trial judge's factual findings.

On 20 December 2001, the Court of Appeal allowed the Home Office's appeal. The court disagreed that trespass to the person could be extended to fit these circumstances, and found that no wrongful act (save for the battery against the second applicant) had been committed. Lord Woolf C.J. noted that there were numerous ways in which drugs could be smuggled into prison and that the most vigorous regime of searching prisoners would not in itself suffice. He found therefore that a search of Mr O'Neill would have been inadequate. He rejected the applicants' arguments that the Human Rights Act 1998, which did not have retrospective effect, could affect the outcome of the appeal. While agreeing that the Act had no retrospective effect, Buxton L.J. commented that if the events had occurred after the coming into effect of the Act, the applicants would have had a strong case for relief due to the manner of the search and the public authority's lack of regard for Article 8. The court set aside the first-instance judgment and substituted an award to the second applicant for battery of a total of GBP 3,750.

On 16 October 2003, the House of Lords upheld the judgment of the Court of Appeal and dismissed the applicants' appeal. Holding that the Human Rights Act 1998 was not applicable as the events took place before its coming into force on 2 October 2000, the House of Lords nevertheless went on to consider whether, if the Act had been in force, breaches of the Convention could be made out. Lord Hoffman, delivering the leading judgment, found that there was no infringement of Article 3 as the conduct had not been sufficiently humiliating to constitute degrading treatment:

As for Article 8:

Dealing with the applicants' submission that in order for the United Kingdom to conform to its international obligations under the Convention, the House of Lords should find that there was (and in theory always had been) a tort of invasion of privacy under which the searches of the applicants were actionable and damages for emotional distress recoverable, Lord Hoffman stated:

The applicants submitted that English law was deficient in its ability to provide any or any effective remedy for the violations in this case. The damages received by the second applicant were on the low side and he remained a victim of breaches of Articles 3 and 8 and should receive full compensation for the harm caused.

The Government submitted that that there was no arguable claim or basis for a separate finding of a violation of this provision. In any event, they pointed out that since the coming into force of the Human Rights Act 1998 any violation arising from similar facts could give rise to a remedy under that Act.

Article 13 requires a remedy in domestic law in respect of grievances which can be regarded as ‘arguable’ in terms of the Convention (see, for example, Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, pp. 23–24, § 54). While it does not go so far as to guarantee a remedy allowing a Contracting State's laws to be challenged before a national authority on the ground of being contrary to the Convention (see Costello-Roberts v. the United Kingdom, judgment of 25 March 1993, Series A no. 247-C, p. 62, § 40), where an applicant has an arguable claim to a violation of a Convention right, however, the domestic regime must afford an effective remedy (ibid., p. 62, § 39).

In light of the finding of a violation of Article 8 above, the complaint is clearly arguable. The question which the Court must therefore address is whether the applicants had a remedy at national level to ‘enforce the substance of the Convention rights … in whatever form they may happen to be secured in the domestic legal order’(see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, pp. 38–40, §§ 117–27).

While it is true that the applicants took domestic proceedings seeking damages for the searches and their effects they had on them, they were unsuccessful, save as regards the instance of battery on the second applicant. As stated above, the Court considers that the finding of unlawfulness of that action and the provision of compensation deprived the second applicant of victim status for the purposes of Article 8 in that regard; it finds no basis, under Article 13 of the Convention, to consider that the amount of compensation awarded by the domestic courts was so derisory as to raise issues of the effectiveness of the redress. As regards the other objectionable elements of the strip searches, the Court observes that the House of Lords found that negligent action disclosed by the prison officers did not ground any civil liability, in particular as there was no general tort of invasion of privacy. In these circumstances, the Court finds that the applicants did not have available to them a means of obtaining redress for the interference with their rights under Article 8 of the Convention.

There has therefore been a violation of Article 13 of the Convention.

The applicants claimed compensation for non-pecuniary damage, referring to the after-effects of the searches which lasted at least eighteen months and from which they had still not fully recovered. They pointed out that the trial judge had considered their case appropriate for an award of aggravated damages. Taking into account that the effects were more severe on the second applicant but also that he had received an award for battery, they claimed 20,000 pounds sterling (GBP) each.

The Government submitted that these sums were excessive and not supported by the jurisprudence of the Court in other strip-search cases, some of which included other violations. They considered that 3,000 euros (EUR) must be regarded as the upper limit.

The Court does not, as a matter of practice, make aggravated or exemplary damages awards (see, for example, Akdivar and Others v. Turkey (former Article 50), judgment of 1 April 1998, Reports1998-II, § 38). Having regard to the undoubted and more than transient distress suffered by the applicants and to the awards made in other strip search cases, the Court awards EUR 3,000 each to the first and second applicants.

The applicants claimed legal costs and expenses of a total of GBP 29,646.25, inclusive of value-added tax (VAT) of which GBP 9,705.50 related to their solicitor (including 144 letters received or sent and 23.5 hours of work on perusing and preparation) and GBP 19,940.75 to counsel.

The Government did not accept that these sums had been necessarily incurred or that they were reasonable as to quantum. They considered the hourly rate of GBP 200 was excessive for a solicitors’ firm outside London and that the number of hours claimed was not reasonable. An automatic charge of GBP 20 for each occasion of sending or receiving correspondence was also unreasonable. They proposed GBP 2,500 for solicitors’ fees and pointed out that if the applicants' complaints were only partly successful that should be taken into account.

The Court recalls that that only legal costs and expenses found to have been actually and necessarily incurred and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, among other authorities, Nikolova v. Bulgaria[GC], no. 31195/96, 25 March 1999, § 79, and Smith and Grady v. the United Kingdom (just satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR 2000-IX). It notes the Government's objections and finds that the claims may be regarded as unduly high given the procedure adopted in the case and the amounts awarded in other comparable United Kingdom cases. Taking into account the amount paid by way of legal aid by the Council of Europe, it awards EUR 17,500 for legal costs and expenses inclusive of VAT.

The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.