Wainwright & Anor v. Home Office

The House of Lords dismissed the appeal. The court held that English common law does not recognise a free-standing tort of invasion of privacy and declined to extend Wilkinson v Downton to permit recovery for mere distress short of recognised psychiatric injury. The strip searches breached internal prison procedures and the touching of Alan Wainwright's penis amounted to battery for which damages were recoverable, but the manner of the searches (absent battery or recognised psychiatric injury) did not give rise to a new tort remedy. Relevant instruments and principles considered included Rule 86(1) of the Prison Rules 1964, article 8 and article 3 of the European Convention on Human Rights and sections 6 and 7 of the Human Rights Act 1998.

Background and facts:

• On 15 August 1996 Patrick O'Neill was detained at Armley Prison, Leeds. Prison authorities required visitors who wished open visits to submit to strip searches pursuant to Rule 86(1) of the Prison Rules 1964. On 2 January 1997 Mrs Wainwright (the mother) and her son Alan attended to visit Patrick O'Neill, were strip-searched and found the experience upsetting. Alan subsequently suffered post-traumatic stress disorder; Mrs Wainwright suffered emotional distress.

Procedural posture and relief sought:

• The claimants sued the Home Office claiming damages for the manner of the strip searches. The Leeds County Court (Judge McGonigall) found searches were not conducted in accordance with the rules and awarded damages. The Court of Appeal reduced the awards except for the damages assessed for battery. The claimants appealed to the House of Lords (from the Court of Appeal, [2001] EWCA Civ 2081 / reported at [2002] QB 1334).

Issues framed:

• Whether English common law recognises a general tort of invasion of privacy or whether the law should be extended to provide such a remedy;
• Whether Wilkinson v Downton (1897) permits recovery for intentionally inflicted distress falling short of recognised psychiatric injury;
• Whether the strip searches (and the manner of their execution) were tortious and whether conduct amounted to battery; and
• Whether the United Kingdom's Convention obligations (articles 8 and 3) required development of the common law or a remedy in damages.

Court's reasoning:

• The Lords declined to create a high-level general tort of invasion of privacy. They emphasised the fragmentation of privacy claims into distinct heads (intrusion, publication of private facts, false light, appropriation) and the difficulty and unsuitability of developing a single broad principle at common law. They relied on existing authorities (including Malone and Kaye v Robertson) and noted Parliament's and recent statutory developments (for example, the Human Rights Act 1998 and Protection from Harassment Act 1997) as more appropriate mechanisms to fill gaps.
• Wilkinson v Downton was analysed and the court concluded it does not support recovery for mere distress (non-psychiatric) nor did the facts demonstrate the intention or culpability required to found any tort of intention in this case. The court drew a distinction between intentional serious invasions capable of attracting damages and ordinary humiliations or sloppiness which are not ordinarily the business of the law of tort.
• The touching of Alan's penis was accepted as a battery and compensated. Article 3 was not engaged on the facts; article 8 raised more difficult questions but did not require the courts to devise a new common-law remedy when statutory remedies under the Human Rights Act 1998 (sections 6 and 7) and other statutes exist or Parliament can legislate.

Subsidiary findings:

• The strip searches did not comply with internal rules; consent forms were not produced in the proper order; the search room for Mrs Wainwright was not adequately private; and an unexplained touching of Alan's penis occurred. The trial judge's factual findings as to the manner of the searches were accepted.

Appeal dismissed. The House of Lords held that the common law should not be extended to recognise a general tort of invasion of privacy and that Wilkinson v Downton does not permit recovery for mere distress short of recognised psychiatric injury; the touching of Alan Wainwright amounted to battery and was properly compensable, but the non-contact humiliation caused to Mrs Wainwright did not give rise to a new tort remedy. The court noted that the Human Rights Act 1998 provides statutory avenues to address breaches by public authorities.

Appeal to the House of Lords from the Court of Appeal (citation in transcript: [2001] EWCA Civ 2081; reported at [2002] QB 1334). First instance: Leeds County Court (Judge McGonigall).