Wainwright v Home Office

In 1997, Mary Wainwright and her son Alan Wainwright visited Armley Prison in Leeds to visit another son and brother, Patrick O'Neill, who was on remand suspected of drug dealing. Before being permitted to enter the prison, both visitors were subjected to strip searches by prison officers acting under the authority of the Home Office. The searches were conducted pursuant to a prison rule permitting searches of visitors where there were reasonable grounds to suspect that they were carrying prohibited articles.

The manner in which the searches were conducted was seriously objectionable. Mary Wainwright was required to undress and was touched intimately in circumstances that went beyond what any lawful authority permitted. Alan Wainwright, who suffered from a severe learning disability, was also strip searched and, in the course of that search, his penis was touched. The searches were conducted without proper consent having been obtained, and in Alan's case, no meaningful consent could in any event have been given in light of his disability. The conduct of the prison officers was a clear breach of the prison rules governing the manner in which searches were to be carried out.

Both claimants suffered significant psychological harm as a result of the searches. Mary Wainwright developed post-traumatic stress disorder. Alan Wainwright, already a vulnerable individual, suffered psychiatric injury. The claimants brought proceedings against the Home Office in tort, seeking to recover damages for the harm they had sustained. The claims were advanced on a number of bases, the most important of which were battery, negligence, and an alleged tort of invasion of privacy.

At first instance, the trial judge found in favour of the claimants on several grounds. The Court of Appeal allowed the Home Office's appeal in part, holding that there was no general tort of invasion of privacy in English law and setting aside damages awarded on that basis, though upholding the battery claim in respect of Alan Wainwright. The claimants appealed to the House of Lords, which heard the case in 2003.

It is important to note that because the events occurred in 1997, the Human Rights Act 1998 had not yet come into force at the relevant time. The Act, which gives effect in domestic law to Convention rights including Article 8 (right to respect for private life) and Article 3 (prohibition of inhuman or degrading treatment), did not apply retrospectively. The claimants were therefore confined to whatever remedies existed in the common law of tort.

The primary question before the House of Lords was whether English common law recognises a general tort of invasion of privacy. If such a tort existed, it would have provided a straightforward vehicle for the claimants' claims in respect of the degrading and non-consensual searches they had been subjected to.

A subsidiary question concerned the scope of the tort of battery and whether the unlawful touching of Alan Wainwright, a person lacking the capacity to give informed consent, could sustain a claim in battery and whether associated damages including damages for psychiatric injury were recoverable.

The House was also invited to consider whether, even in the absence of a general privacy tort, the incremental development of existing torts — in particular negligence — could provide a remedy for the kind of harm suffered by the claimants, and whether the Human Rights Act 1998 should influence the development of the common law even in respect of pre-Act events.

Lord Hoffmann, with whom the other Law Lords agreed, delivered the leading speech. He began by surveying the historical development of English tort law and its relationship with the concept of privacy, noting that English law had not historically recognised privacy as a legal value worthy of independent tortious protection. Unlike some other common law systems — most notably the United States, where a cluster of privacy torts had been developed — English law had proceeded by way of specific, targeted causes of action such as breach of confidence, trespass to the person, and nuisance, each protecting particular interests without giving rise to any overarching principle.

Lord Hoffmann examined the suggestion, derived from academic writing and occasional judicial comment, that English law might be moving toward recognition of a general privacy tort. He acknowledged that certain decisions, particularly in the area of breach of confidence, had extended protection to information in ways that went beyond the traditional requirements of that action. However, he characterised these developments as an expansion of specific equitable and tortious doctrines rather than as evidence of the emergence of a general principle of privacy.

On the central question of whether a general tort of invasion of privacy should be recognised, Lord Hoffmann declined to do so. He reasoned that the creation of such a tort would involve a significant and wide-ranging development of the common law, with consequences that were difficult to foresee and that would require numerous difficult value judgments about competing interests. Such a development, he held, was more appropriately a matter for Parliament than for the courts. The legislature, unlike the judiciary, has the means to consult widely, to consider the full range of affected interests, and to frame precise and workable rules. Lord Hoffmann drew attention to the fact that Parliament had in fact legislated in the Human Rights Act 1998, which incorporated Article 8 of the European Convention on Human Rights, and that any further development of privacy protection was properly a matter for that legislative framework.

Lord Hoffmann expressly rejected the reasoning of the United States Supreme Court and the approach adopted in some US jurisdictions, which had derived a general privacy tort from the seminal article by Warren and Brandeis. He observed that English law had developed differently, and that the American experience demonstrated the complexity and difficulty of fashioning a workable general tort. The practical difficulties of definition — determining what counts as a sufficiently serious invasion of privacy, balancing privacy against freedom of expression and other public interests — were such that they militated strongly against judicial creation of the tort.

The House also considered the decision in Kaye v Robertson [1991] FSR 62, where the Court of Appeal had declined to find a general right to privacy while expressing regret at the state of the law. Lord Hoffmann noted that this decision illustrated the consistent judicial reluctance to take the step of recognising such a right, and that regret at gaps in the law was not a sufficient basis for judicial legislation. The appropriate response to perceived inadequacy in the law of privacy was legislative action.

The claimants also sought to rely upon the enactment of the Human Rights Act 1998 as a reason for developing the common law in a direction consistent with Convention rights, even in respect of events predating the Act. Lord Hoffmann rejected this argument. The Human Rights Act came into force on 2 October 2000, and its provisions do not have retrospective effect. It would be wrong in principle to use the Act as a tool for developing the common law in respect of events that occurred before it came into force, since this would be to give the Act an effect it was not intended to have. The claimants' remedy, if any, lay in the pre-existing common law.

On the question of negligence, the House considered whether the Home Office owed a duty of care to the claimants in respect of the psychiatric harm they suffered as a consequence of the searches. Lord Hoffmann examined the established principles governing the imposition of a duty of care in respect of psychiatric injury, drawing on the framework elaborated in Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 and Page v Smith [1996] AC 155. However, the House found difficulty in fitting the present facts into the existing categories of duty. The psychiatric harm resulted not from a sudden shocking event but from deliberate wrongdoing that was also actionable as a battery, and the relationship between the parties was not one that readily generated a duty of care in respect of pure psychiatric harm.

On the battery claims, the position was more straightforward, at least in respect of Alan Wainwright. The unlawful touching of his person — touching that went beyond any authority conferred by the prison rules and to which no meaningful consent had been given — constituted a battery. The tort of battery is actionable per se and does not require proof of consequential loss, though damages for psychiatric injury consequent upon the battery were also recoverable. The House upheld the battery finding in Alan Wainwright's case.

With respect to Mary Wainwright, the position on battery was more complex, turning on questions of consent and the precise nature of the touching that had occurred. The House examined whether consent had been obtained and whether any consent given was vitiated by the circumstances. The conclusion was that the searches as conducted, involving touching that went beyond what was authorised, were unlawful, though the precise analysis differed somewhat from Alan's case given the different circumstances in which her search was conducted.

Lord Hoffmann acknowledged that the result — that the claimants could not recover on a privacy basis — might appear unsatisfactory given the obvious and serious violation of their dignity and bodily integrity that had occurred. He observed, however, that this was a consequence of the state of English law at the time of the events in question. The situation would be different for events occurring after the Human Rights Act came into force, since a public authority's obligations under Article 8 of the Convention could then be enforced directly under the Act. He expressed no view on how the common law might develop in future cases not governed by the Act.

The House also gave consideration to the earlier decision of the Court of Appeal in Wilkinson v Downton [1897] 2 QB 57, in which it had been held that the intentional infliction of harm by means of a false statement could found a cause of action. The claimants argued that this principle might be extended to provide a remedy for the deliberate infliction of distress through invasive conduct. Lord Hoffmann examined Wilkinson v Downton carefully and, while accepting that it established a genuine common law cause of action for the intentional infliction of bodily harm, doubted that it could be extended so as to create a general tort of causing distress by deliberate acts that invade privacy. The decision was confined to situations where there was an intention to cause harm, and its scope had never been extended to privacy invasions as such.

The House of Lords held that English common law does not recognise a general tort of invasion of privacy. The creation of such a tort was a matter for Parliament, not the courts. The Human Rights Act 1998, while incorporating Article 8 of the European Convention on Human Rights into domestic law, did not have retrospective effect and could not be used to develop the common law in respect of events occurring before it came into force.

The battery claims in respect of the unlawful touching of the claimants — particularly Alan Wainwright — were upheld. The searches as conducted went beyond any lawful authority and beyond any consent that had been given, constituting an unlawful application of force to the person. Damages for the psychiatric harm consequent upon the battery were recoverable.

The appeal by the claimants seeking recognition of a privacy tort was dismissed. The Home Office's appeal against findings of liability in battery was dismissed in respect of Alan Wainwright. The House did not disturb the Court of Appeal's rejection of the claim based on a general privacy tort.

Wainwright v Home Office [2003] UKHL 53 is the definitive authority for the proposition that English common law does not recognise a general tort of invasion of privacy. It has been consistently cited and applied in subsequent cases as the leading statement of this principle, and it has shaped the subsequent development of privacy law in England and Wales. Courts and commentators alike have treated it as closing the door, at least in terms of common law development, on the possibility of a freestanding privacy tort, leaving any further development to the Human Rights Act framework or to Parliament.

The decision is to be read alongside the subsequent development of the action for misuse of private information, which has been fashioned by the courts from the equitable action for breach of confidence, informed by Article 8 values. In cases such as Campbell v MGN Ltd [2004] UKHL 22 and McKennitt v Ash [2006] EWCA Civ 1714, the courts have developed a sophisticated framework for protecting private information that is, in practical terms, privacy law in all but name. However, these developments have been careful to operate within the existing cause of action for breach of confidence rather than by creating a new general privacy tort, precisely because of the constraint imposed by Wainwright.

The case also has significance for the law of battery and the protection of bodily integrity. The holding that unlawful touching in the course of an unauthorised search constitutes battery, and that damages for consequential psychiatric harm are recoverable, reinforces the importance of consent and lawful authority as preconditions for any interference with the body. It also demonstrates the courts' willingness to use established torts robustly where state actors overstep the bounds of their authority, even where novel heads of liability are unavailable.

Following the House of Lords' decision, the claimants took their case to the European Court of Human Rights, which decided in Wainwright v United Kingdom (2007) 44 EHRR 40 that the United Kingdom had violated Article 8 of the Convention (right to respect for private life) and Article 13 (right to an effective remedy) in respect of both claimants. The Strasbourg Court found that the