Wainwright v Home Office

Section 3(1) of the Human Rights Act 1998 could not retrospectively alter substantive law or reinterpret Prison Rule 86 for events occurring before the Act came into force. English law did not then recognise a free-standing tort of invasion of privacy. The principle in Wilkinson v Downton was confined to intentional or reckless conduct causing physical harm or recognised psychiatric illness; distress and humiliation alone were insufficient. The search was also outside the scope of the prison’s own procedure, so consent and statutory justification would not have defeated liability if an actionable tort had existed. The appeal was allowed. The battery claim remained, but damages were reduced.

Mrs Mary Wainwright and her son Alan were strip-searched by prison officers when visiting another prisoner at Armley Prison on 2 January 1997. Leeds County Court awarded Mrs Wainwright £2,600 and Alan £4,500, including aggravated damages, holding that the conduct amounted to extended trespass to the person based on privacy and the principle in Wilkinson v Downton. Alan also had an unchallenged battery claim.

The Home Office appealed on the existence of the alleged torts, consent, statutory authority, proportionality and the retrospective application of section 3 of the Human Rights Act 1998. The central questions were whether the common law recognised liability for invasion of privacy or intentional infliction of harm on these facts, and whether the prison search was authorised.

The appeal was unanimously allowed. Lord Woolf CJ gave the leading judgment. Lord Justice Mummery agreed with the reasons and added concurring observations. Lord Justice Buxton gave detailed additional reasons.

1. Human Rights Act. Section 3(1) of the Human Rights Act 1998 did not apply retrospectively to a cause of action arising in 1997. Section 22(4), which expressly provided for limited retrospective operation of section 7, showed that Parliament had specified when retrospective effect was intended. The European Convention on Human Rights could therefore operate only as background and could not create a retrospective common-law right to privacy.
2. Trespass and intentional infliction. Trespass to the person protects against direct physical interference and related apprehension of such interference. It could not properly be extended to conduct causing claimants to do something to themselves. The principle in Wilkinson v Downton, as explained in Minna Wong v Parkside Health NHS Trust and another, required actual physical harm or recognised psychiatric illness, together with intention to cause that harm or recklessness as to whether it would occur. The judge had made no finding of the necessary intention or recklessness. Mrs Wainwright had no qualifying physical illness.
3. Privacy. English law in 1997 did not recognise a free-standing tort of invasion of privacy. Earlier authority protected particular privacy interests through established torts and breach of confidence. The observations in Douglas and Others v Hello! Ltd concerning an independent privacy principle were obiter and could not overcome Kaye v Robertson and Khorasandjian v Bush. Creating a general privacy tort involved major questions of policy and was for Parliament.
4. Alternative defences. The court considered, on the assumption that an actionable tort existed, that consent would fail because the claimants had not consented to the materially more intrusive search actually carried out. Rule 86(1) of the Prison Rules 1964 did not authorise an unlimited or improperly conducted search. The prison’s own procedures required a private and seemly search, and those requirements were not observed.
5. Orders. Mrs Wainwright’s claim was dismissed. Alan Wainwright’s damages for the separate battery were reduced to £3,750, including £1,000 aggravated damages. The Home Office received costs against Mrs Wainwright, subject to leave for enforcement. Permission to appeal to the House of Lords was granted.

1. Leeds County Court — On 23 April 2001 HH Judge McGonigal awarded Mrs Wainwright £2,600 and Alan Wainwright £4,500, including aggravated damages.
2. Court of Appeal — The appeal was allowed. Mrs Wainwright’s claim was dismissed and Alan Wainwright’s damages were reduced to £3,750. Permission to appeal to the House of Lords was granted.