Wainwright v Home Office

The common law afforded no general tort of invasion of privacy. Privacy interests could receive protection through established torts and breach of confidence, but trespass to the person could not be extended into a general remedy for distressing intrusions. Liability for intentional infliction of harm required bodily injury or recognised psychiatric illness and the requisite intention, imputed intention or recklessness concerning such harm. Deliberate conduct causing distress did not itself establish liability. Section 3 of the Human Rights Act 1998 could not retrospectively alter substantive liability for earlier events. Consent to a properly conducted search did not extend to material departures from the prescribed procedure.

Mary Wainwright and her son Alan visited Armley prison to see another of her sons, Patrick O’Neill. Prison officers suspected that Patrick was obtaining drugs from visitors. They required Mary and Alan to undergo strip-searches before the visit. Alan had cerebral palsy and some mental impairment. The searches departed from the prison’s prescribed procedure, and the consent forms were signed after the searches had been completed or substantially completed. Alan was also physically handled.

At Leeds County Court, Judge McGonigal awarded Mary £2,600 and Alan £4,500, including aggravated damages. He treated the searches as actionable extensions of trespass protecting personal safety and privacy. The Home Office appealed, while accepting liability for the battery upon Alan. The principal questions concerned the existence of the asserted torts, the retrospective application of the Human Rights Act 1998, and the alternative defences of consent and statutory authority.

1. The appeal was allowed unanimously, subject to the admitted battery upon Alan. Mrs Wainwright’s claim was dismissed. Alan’s damages were reduced to £3,750, including £1,000 aggravated damages. The amount was expressly determined without establishing a precedent for other cases.

2. Per Lord Woolf CJ, with Mummery and Buxton LJJ agreeing on the retrospective issue, section 3 of the Human Rights Act 1998 could not change substantive liability for events preceding its commencement. A trial after commencement did not permit a Convention-compatible interpretation to create liability retrospectively. Section 22(4) demonstrated that Parliament expressly identified the circumstances in which retrospective operation was intended. The Convention was relevant only as background to this appeal.

3. Per Lord Woolf CJ and Buxton LJ, whose reasons Mummery LJ adopted, liability under Wilkinson v Downton required actual bodily injury or recognised psychiatric illness and the requisite intention, imputed intention or recklessness concerning that harm. Deliberate conduct producing offence or distress was insufficient. The trial judge had made no necessary finding of intention or recklessness, and his findings did not support one. Lord Woolf CJ adopted the definition in Minna Wong v Parkside Health NHS Trust and another. Buxton LJ accepted that decision as binding and found that the claim failed under every formulation discussed. The distinctions between those formulations therefore required no resolution.

4. Per Buxton LJ, with Mummery LJ agreeing, trespass could not be extended into a general remedy for inducing conduct causing humiliation or illness. Battery protected against physical interference, while assault protected against its immediate apprehension. The asserted intentional-harm claim had to satisfy its own requirements.

5. Per Mummery and Buxton LJJ, English law recognised no general tort of invasion of privacy. Established torts and breach of confidence protected particular interests. Buxton LJ treated Kaye v Robertson and Khorasandjian v Bush as barriers to recognising the proposed tort. Sedley LJ’s wider observations in Douglas and Others v Hello! Ltd did not overcome those authorities. The unincorporated Convention could not independently confer enforceable domestic rights.

6. Obiter, per Lord Woolf CJ and Buxton LJ, neither consent nor statutory authority would have defeated an otherwise actionable claim. Consent concerned a search conducted according to the prescribed procedure. It did not cover what occurred. Rule 86 of the Prison Rules 1964 afforded no unlimited authority to conduct an unseemly search. Properly conducted visitor searches were nevertheless appropriate to the serious drug problem; the objection concerned their manner.

7. Buxton LJ left open the wider implications of the Act for private law rights and the recoverability and remoteness of damages under section 7. Permission to appeal to the House of Lords was granted.

• Court of Appeal: In [2001] EWCA Civ 2081 , the court unanimously allowed the Home Office’s appeal except as to the admitted battery. Mrs Wainwright’s claim was dismissed and Alan’s award reduced to £3,750. Permission to appeal to the House of Lords was granted.
• Leeds County Court: On 23 April 2001, Judge McGonigal awarded Mrs Wainwright £2,600 and Alan £4,500, including aggravated damages, for the manner of their strip-searches. He granted leave to appeal. No citation for that judgment is supplied.