Wainwright and another (Appellants) v. Home Office (Respondents)

English common law does not recognise a general tort of invasion of privacy. Courts may develop existing causes of action incrementally, but privacy remains an underlying value rather than a sufficiently precise, freestanding legal principle.

The absence of statutory authority does not itself make conduct actionable. A claimant must establish an existing tort or breach of statutory duty.

The principle in Wilkinson v Downton does not provide damages for distress falling short of recognised psychiatric injury. Any possible tort for intentionally causing such distress would require actual knowledge that the conduct was unjustifiable and an intention to cause harm, or indifference to that consequence. Imputed intention is insufficient, and the existence of such a tort was left open.

Mrs Wainwright and her son Alan underwent strip searches before visiting a prisoner at Armley Prison. The searches were justified in principle under Rule 86(1) of the Prison Rules 1964, but were performed contrary to the prison's prescribed safeguards. Alan was also subjected to non-consensual intimate touching, which the Home Office conceded was a battery. He subsequently suffered post-traumatic stress disorder; Mrs Wainwright suffered distress without a recognised psychiatric illness.

The Leeds County Court awarded damages to both claimants. The Court of Appeal, [2001] EWCA Civ 2081; [2002] QB 1334, held that no tort had been committed apart from the battery and preserved £3,750 of Alan's award. In Wainwright and another v Home Office, the claimants appealed on the grounds that the common law should recognise a general tort of invasion of privacy or extend the principle in Wilkinson v Downton to cover the searches and resulting distress.

1. Disposition. The House of Lords unanimously dismissed the appeal. Lord Hoffmann delivered the leading speech. Lord Bingham, Lord Hope and Lord Hutton expressly agreed with it, while Lord Scott agreed fully with the applicable common-law principles and the dismissal of the appeal.

2. Statutory authority and an underlying cause of action. Per Lord Hoffmann, the failure to observe the restrictions governing searches meant that the conduct was not protected by Rule 86(1) of the Prison Rules 1964. That did not itself create liability. The claimants still had to establish that the conduct was tortious or breached a statutory duty.

3. No general privacy tort. Per Lord Hoffmann, English law did not recognise a freestanding tort of invasion of privacy. Privacy was a value underlying several established remedies, including trespass and breach of confidence, and could guide their incremental development. It was not a legal principle sufficiently defined to generate liability across disparate situations. The Convention did not require one general common-law cause of action. Sections 6 and 7 of the Human Rights Act 1998 had, prospectively, supplied substantial remedies against public authorities.

4. Intentional infliction of harm. Per Lord Hoffmann, Wilkinson v Downton [1897] 2 QB 57 did not provide a remedy for distress falling short of recognised psychiatric injury and had no connection with trespass to the person. Imputed intention could not justify a distinct tort permitting recovery for mere distress. Any such intentional tort would require conduct which the defendant knew was unjustifiable and an intention to cause harm, or indifference to whether harm resulted. The prison officers had acted in good faith, and the procedural breaches resulted from sloppiness rather than an intention to humiliate. Lord Hoffmann reserved whether damages would be recoverable even where the required intention existed.

5. Convention rights. Lord Hoffmann, with Lord Bingham, Lord Hope and Lord Hutton agreeing, concluded that the searches fell well below the degree of humiliation required by article 3. He left the article 8 position unresolved. Even if article 8 had been infringed, that would reveal a former gap in domestic remedies rather than require distortion of established common-law principles. Lord Scott considered it unnecessary to determine whether comparable post-commencement conduct would breach article 3 or article 8.

6. Battery and damages. The intimate touching of Alan was an admitted battery, and the Court of Appeal's award of £3,750 remained undisturbed. Lord Scott considered that the touching and the humiliation caused by the search were inseparable and would have been receptive to restoring the full £4,500. Since no such argument was advanced, he joined in dismissing the appeal.

1. House of Lords: In Wainwright and another v Home Office [2003] UKHL 53, the appeal was dismissed unanimously, leaving the Court of Appeal's order undisturbed.
2. Court of Appeal: [2001] EWCA Civ 2081; [2002] QB 1334. The court held that a properly conducted search would have been appropriate, but the procedural departures were not protected by statutory authority. It set aside the judgments except for Alan's battery damages, to which it attributed £3,750.
3. Leeds County Court: Judge McGonigall found for both claimants and awarded Mrs Wainwright £2,600 and Alan £4,500, including aggravated damages. He treated the searches as unjustified trespasses and recognised a remedy for distress arising from infringement of privacy.