Wainwright v Home Office [2003] UKHL 53

A mother and son, improperly strip-searched during a prison visit, suffered psychiatric injury. The House of Lords rejected their claim for invasion of privacy, stating no such general tort existed in English law, and clarified the tort of intentional infliction of harm.

Facts

In December 1996, Mrs Carol Wainwright and her son Alan Wainwright visited Armley Prison in Leeds to see another son, Patrick, who was on remand. Alan Wainwright had cerebral palsy and learning difficulties. On suspicion that they were trafficking drugs, prison officers required them to undergo a strip-search. The searches were conducted in a manner that failed to comply with the prison’s own internal rules. The claimants alleged the manner of the search was intrusive and humiliating. Alan Wainwright was touched on his penis by an officer, which went beyond the procedural rules. As a result of the experience, Alan developed post-traumatic stress disorder (PTSD), and his mother suffered emotional distress.

The Wainwrights brought an action against the Home Office for damages. The claims were for trespass to the person (battery and assault) and for intentional infliction of emotional distress under the rule in Wilkinson v Downton [1897] 2 QB 57. At the Court of Appeal, a claim for a new, standalone tort of invasion of privacy was also advanced and accepted. The Home Office appealed to the House of Lords.

Issues

The House of Lords considered several key legal issues:

1. Whether English common law recognised, or should recognise, a general tort of invasion of privacy.
2. The proper scope and elements of the tort of intentional infliction of harm under the rule in Wilkinson v Downton, particularly whether it covered distress falling short of a recognised psychiatric illness.
3. Whether the facts constituted a trespass to the person (specifically, battery).
4. Whether the events constituted a breach of Article 8 of the European Convention on Human Rights (ECHR) and, if so, whether this could found a claim for damages for events pre-dating the full implementation of the Human Rights Act 1998.

Judgment

The House of Lords unanimously allowed the Home Office’s appeal, dismissing the Wainwrights’ claims. Lord Hoffmann gave the leading speech, with which Lord Bingham and Lord Hope agreed. Lord Scott delivered a concurring speech.

Invasion of Privacy

Lord Hoffmann decisively rejected the invitation to create a general tort of invasion of privacy. He argued that the concept of ‘privacy’ was too broad and ill-defined to be encapsulated in a single legal principle. He noted that Parliament had enacted specific legislation to protect certain aspects of privacy (e.g., data protection, surveillance) and that developing the common law in this area was a complex task best left to the legislature.

But the creation of such a high-level principle is not, in my opinion, a proper exercise of the judicial function. It would be recognising a new cause of action, not developing an old one. The courts would be undertaking the difficult and controversial task of weighing the public interest in freedom of expression against the privacy of the individual… It is a matter for debate, which is not best conducted in the course of judicial decision-making, whether the protection of privacy should be a high-level principle of general application or should be confined to specific situations.

He suggested that the incremental development of the existing tort of breach of confidence, as influenced by Article 8 of the ECHR, was the appropriate judicial path forward for protecting informational privacy, but this did not assist the Wainwrights.

The Rule in Wilkinson v Downton

Lord Hoffmann clarified and narrowed the scope of the tort of intentional infliction of harm. He stated that the tort required two essential elements: a ‘conduct’ element and a ‘mental’ element. He defined these as:

The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the mental element requires an intention to cause at least severe mental or emotional distress.

Crucially, he held that for the harm to be actionable, it must amount to a recognised psychiatric illness; mere distress or humiliation is insufficient.

I see no reason why the foresight of a recognised psychiatric illness should not be a sufficient alternative ‘imputed’ intention. But I think that the defendant must actually have intended to cause severe distress or have been reckless as to whether the claimant suffered such distress. I also think that ‘severe’ distress is not enough. The injury must be a recognised psychiatric illness.

In this case, while the prison officers’ actions were deplorable, there was no evidence that they intended to cause the psychiatric injury Alan suffered. Their intention was to find drugs, not to cause clinical harm, so the claim under this head failed.

Trespass to the Person

Lord Hoffmann concluded that no battery had occurred. Regarding Alan, the touching of his penis, while a departure from procedure, was part of the search to which he had submitted, albeit reluctantly. Lord Hoffmann stated that for a touching to be a battery, it must be hostile, and the prison officers’ actions, while clumsy and inept, were not hostile. Lord Scott disagreed on this point, opining that the touching of Alan’s genitals went beyond any consent given and did constitute battery, for which he would have awarded nominal damages. However, the majority view prevailed. Mrs Wainwright’s claim for battery also failed as the initial touching to get her to cooperate was considered within the bounds of acceptable conduct in that context.

Human Rights Act 1998

The Lords accepted that the manner of the search was a clear violation of the Wainwrights’ right to respect for private life under Article 8 of the ECHR. However, the events took place in 1996, before the Human Rights Act 1998 came into force on 2 October 2000. It was established law that the Act did not have retrospective effect in the sense of creating a cause of action for events that occurred before that date where no such action existed in domestic law at the time. Therefore, no remedy was available under the HRA 1998.

Implications

The decision in Wainwright v Home Office had significant implications for English tort law. It firmly halted the judicial development of a general common law tort of privacy, leaving this complex area to Parliament and the incremental expansion of the breach of confidence doctrine (which has since become ‘misuse of private information’). Secondly, it substantially restricted the utility of the tort in Wilkinson v Downton by confirming that the claimant must prove an intention to cause harm (or recklessness thereto) and that the resulting harm must be a recognised psychiatric illness, not just severe distress. This raised the bar for claimants seeking remedies for intentionally inflicted emotional or psychological harm.

Verdict: The appeal by the Home Office was allowed. The Wainwrights’ claims were dismissed.

Source: Wainwright v Home Office [2003] UKHL 53