What rights do prisoners? families enjoy under the European Convention on Human Rights (ECHR)? While prisoners? rights have always featured prominently in ECHR jurisprudence, two recent cases consider the extent to which the ECHR affords protection to those outside the prison walls.
The appellants comprised three Guantanamo Bay detainees and several members of their families. The detainees were not British nationals, but each of them had been granted indefinite leave to remain in the UK and two had been granted asylum. On several occasions from September 2002 onwards, the appellants asked the Foreign Secretary to make a formal request to the US authorities for the detainees? release. The Foreign Secretary consistently refused on the basis that the detainees were not British nationals. She considered that such a request would be seen by the US as ?unjustified special pleading? and would be both ?ineffective and counterproductive?. The Divisional Court refused to compel the Foreign Secretary to make such a request and the appellants appealed to the Court of Appeal.
While the appellants pursued a number of other grounds ? each of which failed ? the families? reliance on the ECHR is of particular importance. Indeed, the court recognised that the Human Rights Act 1998 (HRA) had rendered it more difficult to identify the legal boundary between the executive and judicial functions. Ordinarily, the conduct of foreign relations was so particularly the responsibility of government that the courts should not tread such ground. However, in this case, the detainees had been subjected to at least inhuman and degrading treatment and their families? suffering was particularly serious. The question therefore arose as to whether the ?legal and ethical muscle? of human rights law carried sufficient force to propel the courts into otherwise forbidden territory.
The families claimed that their enforced separation from the detainees, and the distress this had caused, gave rise to violations of Arts 3 and 8. Their claim was supported by clinical evidence and the Divisional Court had accepted that their suffering was sufficient to engage Art 3. The Court of Appeal accepted that their complaints also fell within Art 8.
Arts 3 and 8 provide:
3. No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
8(1). Everyone has the right to respect for his private and family life, his home and his correspondence.
8(2). There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The critical difficulty with the families? claim was that their suffering was caused by the actions of a foreign state (the US) for which the UK bore no responsibility under the ECHR or the HRA. The question for the court was therefore whether Arts 3 and 8 imposed some form of duty on the UK to make representations to the US on behalf of the families.
The first hurdle the families faced was the earlier Court of Appeal judgment in Abbasi  EWCA Civ 1598. There, the court rejected a British national?s claim that the Foreign Secretary should take all reasonable steps to secure his release from Guantanamo Bay. It held that neither the ECHR nor the HRA imposed a duty on the Foreign Secretary to exercise diplomacy on a detainee?s behalf. However, the court in the present case accepted that events had moved on since Abbasi. In particular, the UK government had since secured the release of British nationals detained at Guantanamo and had adopted the policy that the camp should be closed. The court was therefore content to consider the families? claim on its merits.
The families? claim ultimately foundered on a line of authority flowing from the decision of the European Commission of Human Rights in Bertrand Russell Peace Foundation v UK  14 D&R 117. The Commission had declared inadmissible the Foundation?s complaints under Arts 8 and 10 arising from the Post Office?s refusal to complain to the Soviet Authorities about the interception of post sent to the USSR. In doing so, it established that the ECHR could not be interpreted ??so as to give rise to any obligation on the contracting parties to secure that non-contracting states, acting within their own jurisdiction, respect the rights and freedoms guaranteed by the [ECHR], even though? their failure to do so may have adverse effects on persons within the jurisdiction of the contracting state?.
While the families sought to distinguish Bertrand Russell on a number of grounds, only one was considered in detail. This was that the UK had an erga omnes ius cogens obligation to forestall torture. (Although torture at Guantanamo had not been conclusively established, if the UK owed a duty to intervene in torture cases, it would have had to investigate the families? allegations of such.) According to the International Criminal Tribunal for the Former Yugoslavia, an obligation of this nature: (a) was owed to all other members of the international community (rather than one?s own citizens only); and (b) enjoyed a higher rank in the international hierarchy of legal rules such that it could not be derogated from (see Prosecutor v Furundzija  ICTY 3, 10 December 1998). However, the Court of Appeal concluded, on the basis of this authority, that the status of erga omnes ius cogens merely empowered, but did not oblige, a state to intervene with another state to insist on respect for the prohibition against torture. Therefore, it did not undermine the principle emerging from the Bertrand Russell line of authority.
Accordingly, the families? ECHR claim was rejected. The court concluded that, while the courts have a special responsibility in the field of human rights, the government has a special responsibility in the fields of foreign relations and national security. In such areas, the state?s margin of appreciation was especially broad. The court?s role was simply to ensure that the government complied with all formal requirements and rationally considered all relevant matters. In the present case, the UK had been entitled, as the Foreign Secretary had explained in evidence, to focus its diplomatic efforts on the closure of the Guantanamo Bay facility as a whole, rather than the individual cases of a small class of detainees.
The applicants, Mary and Alan Wainwright, were the mother and half-brother of a remand prisoner at HMP Armley, Leeds. In January 1997, they visited the prison for the first time but, as a precondition of their visit, both applicants were subjected to strip-searches. (The governor had ordered that all visitors for this prisoner be strip-searched, due to a suspicion that he was supplying drugs.) The searches were carried out in breach of the prison?s own rules and caused the applicants considerable distress. Both were required to undress fully; neither was provided with a copy of the requisite consent form until the searches were complete; Mary was visible through a window for the duration of her search; and Alan, who suffered from cerebral palsy, was subjected to a physical examination of his penis.
Subsequent psychiatric evidence revealed that the searches had exacerbated a pre-existing depressive condition in Mary and had induced post-traumatic stress disorder in Alan. They were both awarded damages in the county court on the basis that the requirement to remove their clothes constituted a form of trespass to the person. The judge based this conclusion partly on domestic case law and partly on the view that English tort law must provide a remedy for distress caused by a breach of Art
8, notwithstanding that the HRA had not been in force at the time of the searches. While damages were also awarded for a battery against Alan arising from the physical examination, this had been conceded by the Home Office and the issue did not feature prominently in the subsequent appeals.
The Court of Appeal allowed the Home Office?s appeal. Conduct leading to emotional distress did not constitute a trespass to the person where, as here, the prison officers had not caused the harm intentionally or recklessly. Moreover, the HRA had no retrospective effect and so could not affect the outcome of the case. The House of Lords upheld the Court of Appeal?s judgment. It rejected the contention that English law must recognise a tort of invasion of privacy in order to give effect to its obligations under the ECHR. In any event, Art 8 did not require a remedy in respect of a merely negligent invasion of privacy and the searches had been ?nowhere near? humiliating enough to engage Art 3.
The English courts having firmly held that the HRA did not apply, the applicants had to look to the European Court of Human Rights in Strasbourg (ECtHR) in order to enforce their ECHR rights. The ECtHR agreed with the House of Lords on Art 3. While Art 3 would be engaged where a strip-search was carried out in a manner that significantly aggravated the inevitable humiliation of the procedure, the treatment in this case did not reach the minimum level of severity prohibited by Art 3. The searches did however fall within the scope of Art 8, which encompassed the protection of physical and moral integrity, and thus had to be justified under Art 8(2). The ECtHR found that, although the searches had been in accordance with the law and pursued a legitimate aim, the manner in which they were carried out had not been proportionate to that aim. Where safeguards existed for the proper conduct of visitor searches, the prison authorities must ?comply strictly with those safeguards and by rigorous precautions protect the dignity of those being searched from being assailed any further than is necessary?. The prison authorities? failure to do so constituted a violation of Art 8.
The ECtHR also found a violation of Art 13 (the right to an effective remedy). The House of Lords? refusal to recognise a general tort of invasion of privacy had left the applicants unable to obtain redress for the interference with their Art 8 rights. Accordingly the applicants were awarded ?3,000 each.
On one view, the difference in outcome between Al Rawi and Wainwright simply reflects the contrast in the underlying facts. But if a prisoner?s relative is, in principle, entitled to protection under the ECHR, should it matter where the prisoner is detained? It is open to debate whether the ECtHR would have reached the same view as the Court of Appeal in Al Rawi. In dismissing the families? claim, the Court of Appeal relied on a line of Commission authority in which the most recent decision was dated 1996 (Dobberstein v Germany). However, the ECtHR has consistently reiterated that the ECHR should be interpreted as a ?living instrument? in light of present day conditions. As such it is often willing to depart from previous authority where necessary (see, for example, Cossey v UK  13 EHRR 622). One therefore wonders whether the unprecedented situation at Guantanamo Bay may have persuaded the ECtHR to adopt a different view on the obligations of ECHR signatories vis-?-vis third party states such as the US.