In the case of Wainwright V United Kingdom (2006) 22 BHRC 287, a mother and her handicapped son went to visit her other son in prison. When arriving they were separated and strip-searched due to drug smuggling problems in the prison. They were examined in inhumane conditions without the appropriate forms and consent. Due to the extreme circumstances of the search, the claimant and her son were severely distressed. In particular her son, who suffered from PTSD, as the behaviour was magnified due to his physical and educational impairments. The mother and son made an application to the European Court of Human Rights (ECHR) against the United Kingdom on the basis that the House of Lord had made a judgment that was in reach of their Article 8 rights. The ECHR is made up of articles that ensure basic human rights are protected and not breached in countries that belong to the Council of Europe.
The claimant believed the treatment they had received was in violation of their right to respect for private and family life guaranteed by Article 8, which also protects their physical and moral integrity. This is a right that ensures that there is no intrusion by public authority or government to exercise this right, unless it was in accordance with the law. The possible ethical principle for this argument consequentialism. This determines if the act being carried out is morally justified or not and if it produces a good or bad consequence generally. This approach states that some actions are just good or bad under any circumstances. Therefore, without consent a strip search is morally wrong and should not be conducted. In this instance the unsolicited strip-search caused severe mental damage to the individual. Notably, the younger son who suffered from physical impairment who was severely distressed undergoing the strip-search.
Furthermore, the strip searches were so intense that it had affected the wellbeing and health, as the son has suffered from PTSD. He was taken into a separated from his mother and became frightened instantaneously after seeing the officers wear blue gloves, as he anticipated a rectum search. He was forced to remove his boxers in order for the officers to search his genitalia. He initially refused but reluctantly obliged after being told he was only able to see his brother if he did this. At this stage he was visibly shaking and crying. The son was also unable to read and asked for his mother to read him the consent form which was brought out after the search, he was once again told he would not be able to see his brother if he did not comply with the officers. The possible ethical basis that should be used for this argument is a character-based approach, particularly virtue ethics. This argues that ethics is about character and show casing particular virtues such as honesty or kindness. Virtue ethics promotes good characteristics that are perceived to encourage human growth. The approach should make us encourage us to virtuous. This ethical approach encourages the authorities to segregate the likely suspects of drug smuggling and the low-risk visitors. As it is characteristically unlikely that a middle-aged woman who provided constant supervision to her handicapped son would be attempting to bring drugs into a prison.
The argument for the Government is that the claimants had been given a choice of being searched and thus there was no breach of Article 8 under the ECHR. The ethical basis that would applicable for this argument is rule based. As anyone who wanted to visit the prison would be obliged to be searched. At no point during the encounter with the officers was the mother or her son coerces or subjected to any threats to unclad. The government clearly assumes that the officers had behaved in accordance with the law. A possible ethical basis for this argument is a rule-based approach. This seeks to reduce ethical principles to a set of rules to follow. In particular, deontology explains that there are certain moral rules that must be followed, these moral rules should always be implemented regardless of the circumstances. Although the strip searches were unpleasant, it was a duty of the officers to ensure no drugs were brought into the prison.
There would not be a breach of Article 8 in the sense that I caused the claimant’s son PTSD. Article 8 justifies monetary remedies for intentional invasion of privacy executed by a public body. However, if the claimant has suffered distress, there is not normally damages available to recover. There is not a specific principle that say negligence executed by a public body gives rise to a claim for damages of distress, as this is not held in high regards such as the invasion of privacy and bodily safety outlined in Article 8. The court did not agree with the claimant of a trespass to the person and believed that only the battery against the son had been committed. This argument is also supported by a rule-based approach, on the basis that the ethical principles are condensed into a set of rules to follow. Although cases are scrutinised on individual basis, the outlines of article 8 states that there is not damages for the PTSD that was caused as..
In the case of Wainwright v United Kingdom (2006), the ECHR had ruled that there was a violation of Article 8, as the manner the searches were carried out on were not conducted proportionately to the aim of prevent crime and disorder. A strip-search generally interferences under Article 8 (1) and it must be in accordance with the legal rights and for a legitimate aim under Article 8 (2) for it to be permissible. As the damages sought by the claimants for the distress, it was not successful. It was however identified that there was battery conducted against the claimant’s son. I believe that Article 8 should include damages for distress as the son will be suffering from PTSD for a prolonged period of time. The strip-searches were inhumane. The court should have considered a characteristics-based approach to the ruling, as there were litigating factors that should have been taken into account. For example, the son’s physical and mental impairment were of significance as he was not able to consent to the search, but it also caused him severe anxiety and distress to the point where he was visibly shaking, whereby the effects of the search were so extreme he will be suffering from PTSD. Both the Claimant were only compensated €3000 each, which to my belief is not proportionate to inhumane and unpleasant treatment at the prison.
