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From: Stephen Hayes
To: All
Date: 2003-10-19 06:07:58
Subject: Privacy

There have been discussions about genealogy and privacy - the following
article may be of interest.

Steve Hayes
  E-mail: hayesstw{at} - If its full of spam, see webpage.,11026,1064949,00.html

Law lords rule there is no right to privacy

Decision disappoints mother and son strip-searched in jail

Clare Dyer, legal correspondent
Friday October 17, 2003
The Guardian

Five law lords yesterday rejected an attempt to establish that a
right exists under English law to sue for invasion of privacy.

The ruling, which had been keenly awaited by lawyers, establishes
that there is no "freestanding" right to privacy in English law.
Instead, those seeking damages when their privacy is invaded -
including celebrities such as Catherine Zeta-Jones and Michael
Douglas - will have to bring their cases under other, well-established
types of action, such as breach of confidence.

The judges upheld a court of appeal decision that Mary Wainwright,
49, should receive no damages for a strip-search while visiting
Armley prison in Leeds, and that her son, Alan, 25, was entitled
to only 3,750 over the incident in January 1997. The two were
strip-searched while visiting Mrs Wainwright's son and Alan's
half-brother, Patrick O'Neill, who was awaiting trial on a murder
charge and was suspected of dealing in drugs while in prison.

The search was carried out in breach of prison rules, which stipulate
that strip-searches must take place in a completely private room,
the person being searched must sign a consent form beforehand, only
half the body should be naked at a time, and no part of the body
except hair, ears and mouth should be touched.

When the case went to the high court, the judge accepted evidence
from the pair that the room used to search Mrs Wainwright had an
uncurtained window, that mother and son had been asked to uncover
virtually all their bodies at the same time, that they were not
given the consent form until after the search, and that Alan's penis
had been touched and the foreskin pulled back. The judge awarded
Mrs Wainwright 2,600 and Alan 4,500, but the appeal court overturned
the ruling in her favour and reduced her son's damages to 3,750.
The court of appeal ruled that the prison officers had not committed
any wrongful act which could give rise to damages, apart from
battery, in unlawfully touching Alan's penis.

A psychiatrist concluded that Alan, who has physical and learning
difficulties, had been so affected by the experience that he suffered
post-traumatic stress disorder. Mrs Wainwright had suffered emotional
distress but no recognised psychiatric illness.

Lord Hoffmann said strip-searching was controversial because "having
to take off your clothes in front of a couple of prison officers
is not to everyone's taste".

Leeds prison had rules designed to reduce the embarrassment as far
as possible which had not been complied with in the case of the
Wainwrights. But breach of the rules in itself did not give a right
to claim damages.

Lawyers for Mrs Wainwright and her son argued that English law
should now recognise a separate right to sue for breach of privacy.
But Lord Scott said: "Whatever remedies may have been developed for
misuse of confidential information ... and for various other
situations in which claimants may find themselves aggrieved by an
invasion of what they conceive to be their privacy, the common law
has not developed an overall remedy for the invasion of privacy."

A decision on whether damages would be awarded for a similar incident
today, without any element of battery - now that the Human Rights
Act has come into force - would have to await another case, he said.

--- WtrGate v0.93.p9 Unreg
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SEEN-BY: 633/267 270
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