Case Facts
The claimants were a mother, Mary Jane Wainwright, and her son, Alan Joseph Wainwright, aged 21, who was mentally impaired and suffered from cerebral palsy. In 1997, they visited Armley Prison in Leeds to see a relative who was on remand and suspected of drug dealing. Before being permitted to enter, both claimants were required to submit to strip searches by prison officers. The searches were not conducted in accordance with r 86 Prison Rules 1964, the specific provision governing such searches. No drugs were found on either claimant. Alan Wainwright subsequently developed post-traumatic stress syndrome as a result of the ordeal.
At first instance, Judge McGonigal found in favour of the claimants and awarded basic and aggravated damages of £2,600 to the first claimant and £4,500 to the second claimant for trespass to the person. Battery was also established against the second claimant. On appeal, the Court of Appeal allowed the Home Office's appeal on the trespass claims, dismissed the first claimant's claim entirely, and reduced the damages award to the second claimant. The claimants then appealed to the House of Lords, which dismissed their appeals and affirmed the decision of the Court of Appeal.
Held
The House of Lords dismissed the claimants' appeals and affirmed the Court of Appeal, holding on two principal issues as follows.
First, there is no general tort of invasion of privacy in English common law. The creation of such a tort would require a detailed legislative framework rather than the broad application of common law principle. The House of Lords declined to recognise privacy as a stand-alone cause of action, without finding an authority sufficient to justify recognition of a general privacy tort. It was further held that adopting a right to privacy as a principle of law was not necessary in order to comply with Article 8 of the European Convention on Human Rights. Any gaps in the existing remedies for breaches of Article 8 by public authorities had been addressed by ss 6 & 7 Human Rights Act 1998. Critically, however, the events occurred in 1997, before the Human Rights Act 1998 came into force on 2 October 2000, meaning the Act could not apply directly to the searches in question. Nonetheless, the House of Lords addressed the privacy tort question on its merits.
Second, in so far as there might exist a tort of intentionally causing harm — under which damages for distress not amounting to recognised psychiatric injury might be recoverable — the necessary intention to cause harm was not established on the facts. Accordingly, the claim based on Wilkinson v Downton [1897] was dismissed. The House of Lords distinguished that authority.
Ratio Decidendi
The ratio of the case rests on two distinct propositions of law.
First, English common law does not recognise a general tort of invasion of privacy. The House of Lords declined to extend the common law to provide such a cause of action, reasoning that any such development would require a level of legislative detail and policy calibration beyond the reach of incremental judicial development. The fact that ss 6 & 7 Human Rights Act 1998 now provide a mechanism for challenging the conduct of public authorities in breach of Convention rights further militated against judicial creation of a new privacy tort.
Second, in relation to the tort in Wilkinson v Downton [1897], the House of Lords held that even if such a tort extends to distress not amounting to recognised psychiatric injury, the claim must fail where the necessary intention to cause harm is not established on the facts. The critical issue was not the absence of a sufficiently serious psychiatric injury — the second claimant had in fact developed post-traumatic stress syndrome — but rather the absence of the requisite mental element on the part of those who conducted the searches. The prison officers did not intend to cause harm; their actions, though unlawful by reason of non-compliance with r 86 Prison Rules 1964, were not carried out with the intention required to establish liability under this head of tort.
Obiter Dicta
The House of Lords observed that the development of specific privacy protections through legislation — such as the Human Rights Act 1998 — represented the appropriate means by which gaps in the law ought to be addressed, rather than through the creation of a sweeping new common law tort. Their Lordships acknowledged that Article 8 of the European Convention on Human Rights creates positive obligations on the state but declined to translate those obligations into a freestanding common law right enforceable in tort. It was further noted that the incremental and piecemeal approach of English law — protecting specific aspects of privacy through existing torts such as breach of confidence, trespass, and nuisance — was preferable to the adoption of a general and potentially uncertain principle. These observations have since proved influential in shaping the development of privacy law in England and Wales, particularly in the context of the tort of misuse of private information.