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autonomy protected by the article has been widely interpreted and some authorities suggest that a minor interference with the physical integrity of an individual will engage article 863.  However, in R (Gillan) v Commissioner of Police of the Metropolis it was doubted that a routine superficial search of a person could engage article 8 (see paragraph 18 above).  

32.In relation to allegations of forcible treatment of persons detained under the MHA, it was said that it should not matter whether the claim was brought by way of an ordinary action in tort, an action under section 7 HRA or an application for judicial review64.  A further example of an area that may involve both common law claims for battery and / or assault and a claim under section 7 HRA based on infringements of articles 3 and / or 8 is in relation to strip searches carried out in excess of the relevant powers.  If the officials carrying out the strip search touch the claimant then a claim in battery is available.  However, frequently claimants remove their own clothes during a search and there is no direct physical contact with the officials involved.  In Wainwright v Home Office (see above) one of the claimants was touched during the course of the search and thus had a claim in battery for that aspect.  The searches occurred before the HRA came into force and other common law claims (based on Wilkinson v Downton and / or an alleged tort of privacy) failed.  It appears that it was not argued that the searches amounted to assaults; where the claimant reasonably apprehended that the officials would use force to conduct the search if he did not remove his own clothes as instructed this would be a viable claim.  Strip searching may amount to an infringement of article 3, depending upon the degree of suffering engendered, the circumstances and duration of the search and its purpose: Yankov v Bulgaria65.  A strip search would usually engage article 8.

Malicious Prosecution and Malicious Process

Scope of Tort of Malicious Prosecution

33.The tort of malicious prosecution is limited to the malicious institution of criminal proceedings and certain malicious civil claims, which constitute exceptional cases

63 See for example R (B) v Dr S (RMO Broadmoor Hospital) (above) at para. 47.

64 R (Wilkinson) v Broadmoor Special Hospital Authority [2002] 1 WLR 419 at para. 62.

65 (2003) 12 BHRC 266.  

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