In 1689, the Bill of Rights declared that “cruel and unusual punishments” should not be inflicted on citizens. That, though, was at a time when possible punishments included being boiled to death and mutilated with iron pliers. Standards change over time. Today, an Austrian count who spent seven days in an English prison is alleging that his human rights were violated when he was given an uncomfortable pair of underpants.
Alfons Mensdorff-Pouilly lives in a palace in Austria and owns other properties including a castle in Scotland and a home in Sloane Square, London. This is a man who is not accustomed to compromising on the quality or comfort of his underpants.
His period of imprisonment came about as part of a Serious Fraud Office (SFO) investigation into an arms deal arranged by BAE Systems, the UK weapons manufacturer. The SFO investigation concerned allegations that Mensdorff-Pouilly, a BAE agent, made illegal payments of about £10.5 million to officials in order to win contracts for BAE to deliver fighter jets to Hungary, Austria, and the Czech Republic. He was charged with corruption offences for bribing state officials. Eventually, BAE Systems admitted to criminal charges of corruption and agreed to pay £287m to the authorities.
After he was released, Mensdorff-Pouilly said that “in the UK human rights are not exactly respected like they are in Austria.” In recounting the alleged human rights travesty, the count said “I wasn’t given underwear that was my size, despite asking for it several times”.
Does the count have a valid complaint? Could a human rights case of ‘The Wrong Pants’ succeed? On December 10, 1948, the General Assembly of the United Nations (UN) adopted the Universal Declaration of Human Rights. Article 5 says “No one shall be subjected to torture or to cruel inhuman or de-grading treatment or punishment.”
On the minds of the drafters, however, was the suffering of people in the Holocaust and the Second World War. It seems unlikely that the UN would have been diverted for hours of debate if a delegate then had asked “Yes, but legally does article 5 guarantee a suspect’s right to tailor-measured underpants?”
A case of uncomfortable underpants, though, did once change the law. In 1931, Richard Grant, a doctor in Adelaide, got an acute form of dermatitis from a pair of Golden Fleece woollen underpants. These were, in fact, a shockingly bad pair of pants. He was incapacitated for 17 weeks and had to go to New Zealand to recuperate. The dermatitis was caused by a chemical irritant – free sulphites – that manufacturers had failed to remove during production. Dr Grant’s sweat combined with the free sulphites to form, successively, sulphur dioxide, then sulphurous acid and then sulphuric acid. He was allowed to win compensation for the latent defect in the pants. He settled, though, for that compensation and didn’t take his case to the League of Nations as an alleged affront to human dignity.
Gary Slapper is Professor of Law at The Open University.