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|Session 2002 - 03
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Wainwright and another (Appellants) v. Home Office (Respondents)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Wainwright and another (Appellants)
Home Office (Respondents)
THURSDAY 16 OCTOBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Scott of Foscote
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Wainwright and another (Appellants) v. Home Office (Respondents) UKHL 53
LORD BINGHAM OF CORNHILL
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons which he gives I would dismiss this appeal.
2. On 15 August 1996 Patrick O'Neill was taken into custody on a charge of murder and held at Armley Prison, Leeds. The prison authorities suspected that while awaiting trial he was dealing in drugs. They did not know how he obtained his supplies but people who visit prisoners are a common source of drugs and other contraband. So the governor gave instructions that anyone who wanted an open visit with Patrick O'Neill had first to allow himself (or herself) to be strip searched. Rule 86(1) of the Prison Rules 1964 (consolidated 1998) confers a power in general terms to search any person entering a prison.
3. Strip searching is controversial because having to take off your clothes in front of a couple of prison officers is not to everyone's taste. Leeds Prison has internal rules designed to reduce the embarrassment as far as possible. They are modelled on the code of practice issued to the police. The search must take place in a completely private room in the presence of two officers of the same sex as the visitor. The visitor is required to expose first the upper half of his body and then the lower but not to stand completely naked. His body (apart from hair, ears and mouth) is not to be touched. Before the search begins, the visitor is asked to sign a consent form which outlines the procedure to be followed.
4. On 2 January 1997 Patrick O'Neill's mother Mrs Wainwright, together with her son Alan (Patrick's half-brother) went to visit him. A prison officer told them that they would have to be strip searched. They reluctantly agreed and prison officers took them to separate rooms where they were asked to undress. They did as they were asked but both found the experience upsetting. Some time afterwards (it is unclear when) they went to a solicitor who had them examined by a psychiatrist. He concluded that Alan (who had physical and learning difficulties) had been so severely affected by his experience as to suffer post-traumatic stress disorder. Mrs Wainwright had suffered emotional distress but no recognised psychiatric illness.
5. Mrs Wainwright and Alan commenced an action against the Home Office on 23 December 1999, just before the expiry of the limitation period. By the time the case came to trial in April 2001, none of the prison officers could remember searching the Wainwrights. They, on the other hand, gave evidence, which the judge accepted, that the search had not been conducted in accordance with the rules. Both had been asked to uncover all or virtually all of their bodies at the same time, both were not given the consent form until after the search had been completed, the room used to search Mrs Wainwright was not private because it had an uncurtained window from which someone across the street could have seen her and one prison officer had touched Alan's penis to lift his foreskin.
6. Judge McGonigal, who heard the action in the Leeds County Court, said that the searches could not be justified as a proper use of the statutory power conferred by rule 86(1). He gave two reasons: The first was that the strip searching of the Wainwrights was an invasion of their privacy which exceeded what was necessary and proportionate to deal with the drug smuggling problem. Although the prison officers honestly believed that they had a right under the rules to search the Wainwrights (paragraph 83), they should not have done so because it would have been sufficient to search Patrick O'Neill after they left. The second reason was that the prison authorities had not adhered to their own rules. The Court of Appeal agreed with the second reason but not the first. Lord Woolf CJ, who has considerable experience of the administration of prisons, said that a search of Patrick O'Neill would have been inadequate. It followed that "on the findings of the judge, searching, if it had been properly conducted, was perfectly appropriate":  QB 1334, 1351, para 54. On the other hand, Lord Woolf CJ agreed that if there were clearly laid down restrictions on how the search was to be conducted, conduct which did not observe those restrictions could not (if otherwise actionable) be justified.
7. The conclusion of both the judge and the Court of Appeal was therefore that the searches were not protected by statutory authority. But that is not enough to give the Wainwrights a claim to compensation. The acts of the prison officers needed statutory authority only if they would otherwise have been wrongful, that is to say, tortious or in breach of a statutory duty. People do all kinds of things without statutory authority. So the question is whether the searches themselves or the manner in which they were conducted gave the Wainwrights a cause of action.
8. The judge found two causes of action, both of which he derived from the action for trespass. As Diplock LJ pointed out in Letang v Cooper  1 QB 232, 243, trespass is strictly speaking not a cause of action but a form of action. It was the form anciently used for a variety of different kinds of claim which had as their common element the fact that the damage was caused directly rather than indirectly; if the damage was indirect, the appropriate form of action was the action on the case. After the abolition of the forms of action trespass is no more than a convenient label for certain causes of action which derive historically from the old action for trespass vi et armis. One group of such causes of action is trespass to the person, which includes the torts of assault, battery and false imprisonment, each with its own conditions of liability.
9. Battery involves a touching of the person with what is sometimes called hostile intent (as opposed to a friendly pat on the back) but which Robert Goff LJ in Collins v Wilcock  1 WLR 1172, 1178 redefined as meaning any intentional physical contact which was not "generally acceptable in the ordinary conduct of daily life": see also Wilson v Pringle [1987 ] QB 237. Counsel for the Home Office conceded that touching Alan's penis was not acceptable and was therefore a battery.
10. That, however, was the only physical contact which had occurred. The judge nevertheless held that requiring the Wainwrights to take off their clothes was also a form of trespass to the person. He arrived at this conclusion by the use of two strands of reasoning. First, he said that a line of authority starting with Wilkinson v Downton  2 QB 57, which I shall have to examine later in some detail, had extended the conduct which could constitute trespass to the utterance of words which were "calculated" to cause physical (including psychiatric) harm. There was in his view little distinction between words which directly caused such harm and words which induced someone to act in a way which caused himself harm, like taking his own clothes off. So inducing Alan to take off his clothes and thereby suffer post-traumatic stress disorder was actionable.
11. The judge recognised, however, that in the cases upon which he relied the claimant had suffered a recognised psychiatric injury. Mrs Wainwright had not. It seemed to him illogical to deny her a remedy for distress because her constitution was sufficiently robust to protect her from psychiatric injury. So the second strand of his reasoning was that the law of tort should give a remedy for any kind of distress caused by an infringement of the right of privacy protected by article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. At the time of the incident the Human Rights Act 1998 had not yet come into force but the judge considered that he was justified in adapting the common law to the Convention by analogy with the principle by which, even before the 1998 Act, the courts interpreted statutes so as to conform, if possible, to the Convention.
12. The judge therefore found in favour of both Wainwrights. He awarded Mrs Wainwright damages of £2,600, divided into £1,600 "basic" and £1,000 aggravated damages, and Alan £4,500, divided into £3,500 basic and £1,000 aggravated. The award to Alan did not distinguish between the damages for the battery and the injury caused by having to strip.
13. The Court of Appeal did not agree with the judge's extensions of the notion of trespass to the person and did not consider that (apart from the battery, which was unchallenged) the prison officers had committed any other wrongful act. So they set aside the judgments in favour of the Wainwrights with the exception of the damages for battery, to which they attributed £3,750 of the £4,500 awarded by the judge.
14. The Wainwrights appeal to your Lordships' House. Their counsel (Mr Wilby QC and Mr Christie) put the case in two ways. The first was that, in order to enable the United Kingdom to conform to its international obligations under the Convention, the House should declare that there is (and in theory always has been) a tort of invasion of privacy under which the searches of both Wainwrights were actionable and damages for emotional distress recoverable. This does not give retrospective effect to the Human Rights Act 1998. It accepts that the Convention, at the relevant time, operated only at the level of international law. Indeed, the argument (if valid) would have been equally valid at any time since the United Kingdom acceded to the Convention. Alternatively, counsel proposed that if a general tort of invasion of privacy seemed too bold an undertaking, the House could comply with the Convention in respect of this particular invasion by an extension of the principle in Wilkinson v Downton  2 QB 57.
15. My Lords, let us first consider the proposed tort of invasion of privacy. Since the famous article by Warren and Brandeis (The Right to Privacy (1890) 4 Harvard LR 193) the question of whether such a tort exists, or should exist, has been much debated in common law jurisdictions. Warren and Brandeis suggested that one could generalise certain cases on defamation, breach of copyright in unpublished letters, trade secrets and breach of confidence as all based upon the protection of a common value which they called privacy or, following Judge Cooley (Cooley on Torts, 2nd ed (1888), p 29) "the right to be let alone". They said that identifying this common element should enable the courts to declare the existence of a general principle which protected a person's appearance, sayings, acts and personal relations from being exposed in public.
16. Courts in the United States were receptive to this proposal and a jurisprudence of privacy began to develop. It became apparent, however, that the developments could not be contained within a single principle; not, at any rate, one with greater explanatory power than the proposition that it was based upon the protection of a value which could be described as privacy. Dean Prosser, in his work on The Law of Torts, 4th ed (1971), p 804, said that:
17. Dean Prosser's taxonomy divided the subject into (1) intrusion upon the plaintiff's physical solitude or seclusion (including unlawful searches, telephone tapping, long-distance photography and telephone harassment) (2) public disclosure of private facts and (3) publicity putting the plaintiff in a false light and (4) appropriation, for the defendant's advantage, of the plaintiff's name or likeness. These, he said, at p 814, had different elements and were subject to different defences.
18. The need in the United States to break down the concept of "invasion of privacy" into a number of loosely-linked torts must cast doubt upon the value of any high-level generalisation which can perform a useful function in enabling one to deduce the rule to be applied in a concrete case. English law has so far been unwilling, perhaps unable, to formulate any such high-level principle. There are a number of common law and statutory remedies of which it may be said that one at least of the underlying values they protect is a right of privacy. Sir Brian Neill's well known article "Privacy: a challenge for the next century" in Protecting Privacy (ed B Markesinis, 1999) contains a survey. Common law torts include trespass, nuisance, defamation and malicious falsehood; there is the equitable action for breach of confidence and statutory remedies under the Protection from Harassment Act 1997 and the Data Protection Act 1998. There are also extra-legal remedies under Codes of Practice applicable to broadcasters and newspapers. But there are gaps; cases in which the courts have considered that an invasion of privacy deserves a remedy which the existing law does not offer. Sometimes the perceived gap can be filled by judicious development of an existing principle. The law of breach of confidence has in recent years undergone such a process: see in particular the judgment of Lord Phillips of Worth Matravers MR in Campbell v MGN Ltd  QB 633. On the other hand, an attempt to create a tort of telephone harassment by a radical change in the basis of the action for private nuisance in Khorasandjian v Bush  QB 727 was held by the House of Lords in Hunter v Canary Wharf Ltd  AC 655 to be a step too far. The gap was filled by the 1997 Act.
19. What the courts have so far refused to do is to formulate a general principle of "invasion of privacy" (I use the quotation marks to signify doubt about what in such a context the expression would mean) from which the conditions of liability in the particular case can be deduced. The reasons were discussed by Sir Robert Megarry V-C in Malone v Metropolitan Police Comr  Ch 344, 372-381. I shall be sparing in citation but the whole of Sir Robert's treatment of the subject deserves careful reading. The question was whether the plaintiff had a cause of action for having his telephone tapped by the police without any trespass upon his land. This was (as the European Court of Justice subsequently held in Malone v United Kingdom (1984) 7 EHRR 14) an infringement by a public authority of his right to privacy under article 8 of the Convention, but because there had been no trespass, it gave rise to no identifiable cause of action in English law. Sir Robert was invited to declare that invasion of privacy, at any rate in respect of telephone conversations, was in itself a cause of action. He said, at p 372:
20. As for the analogy of construing statutes in accordance with the Convention, which appealed to the judge in the present case, Sir Robert said, at p 379:
21. Sir Robert pointed out, at p 380, that the problem about telephone tapping was not in formulating the generalisation that the state should not ordinarily listen to one's telephone calls but in specifying the circumstances under which it should be allowed to do so. This required detailed rules and not broad common law principles:
22. Once again, Parliament provided a remedy, subject to a detailed code of exceptions, in the Interception of Communications Act 1985. A similar problem arose in R v Khan (Sultan)  AC 558, in which the defendant in criminal proceedings complained that the police had invaded his privacy by using a listening device fixed to the outside of a house. There was some discussion of whether the law should recognise a right to privacy which had been prima facie infringed, but no concluded view was expressed because all their Lordships thought that any such right must be subject to exceptions, particularly in connection with the detection of crime, and that the accused's privacy had been sufficiently taken into account by the judge when he exercised his discretion under section 78 of the Police and Criminal Evidence Act to admit the evidence obtain by the device at the criminal trial. The European Court of Human Rights subsequently held (Khan v United Kingdom The Times, 23 May 2000) that the invasion of privacy could not be justified under article 8 because, in the absence of any statutory regulation, the actions of the police had not been "in accordance with law". By that time, however, Parliament had intervened in the Police Act 1997 to put the use of surveillance devices on a statutory basis.
23. The absence of any general cause of action for invasion of privacy was again acknowledged by the Court of Appeal in Kaye v Robertson  FSR 62, in which a newspaper reporter and photographer invaded the plaintiff's hospital bedroom, purported to interview him and took photographs. The law of trespass provided no remedy because the plaintiff was not owner or occupier of the room and his body had not been touched. Publication of the interview was restrained by interlocutory injunction on the ground that it was arguably a malicious falsehood to represent that the plaintiff had consented to it. But no other remedy was available. At the time of the judgment (16 March 1990) a Committee under the chairmanship of Sir David Calcutt QC was considering whether individual privacy required statutory protection against intrusion by the press. Glidewell LJ said, at p 66:
24. Bingham LJ likewise said, at p 70:
25. Leggatt LJ, at p 71, referred to Dean Prosser's analysis of the development of the law of privacy in the United States and said that similar rights could be created in England only by statute: "it is to be hoped that the making good of this signal shortcoming in our law will not be long delayed."
26. All three judgments are flat against a judicial power to declare the existence of a high-level right to privacy and I do not think that they suggest that the courts should do so. The members of the Court of Appeal certainly thought that it would be desirable if there was legislation to confer a right to protect the privacy of a person in the position of Mr Kaye against the kind of intrusion which he suffered, but they did not advocate any wider principle. And when the Calcutt Committee reported in June 1990, they did indeed recommend that "entering private property, without the consent of the lawful occupant, with intent to obtain personal information with a view to its publication" should be made a criminal offence: see Report of the Committee on Privacy and Related Matters (1990) Cm 1102, para 6.33 The Committee also recommended that certain other forms of intrusion, like the use of surveillance devices on private property and long-distance photography and sound recording, should be made offences.
27. But the Calcutt Committee did not recommend, even within their terms of reference (which were confined to press intrusion) the creation of a generalised tort of infringement of privacy: paragraph 12.5. This was not because they thought that the definitional problems were insuperable. They said that if one confined the tort to "publication of personal information to the world at large" (paragraph 12.12) it should be possible to produce an adequate definition and they made some suggestions about how such a statutory tort might be defined and what the defences should be. But they considered that the problem could be tackled more effectively by a combination of the more sharply-focused remedies which they recommended: paragraph 12.32. As for a "general wrong of infringement of privacy", they accepted, at paragraph 12.12, that it would, even in statutory form, give rise to "an unacceptable degree of uncertainty". There is nothing in the opinions of the judges in Kaye v Robertson  FSR 62 which suggests that the members of the court would have held any view, one way or the other, about a general tort of privacy.
28. The claimants placed particular reliance upon the judgment of Sedley LJ in Douglas v Hello! Ltd  QB 967. Sedley LJ drew attention to the way in which the development of the law of confidence had attenuated the need for a relationship of confidence between the recipient of the confidential information and the person from whom it was obtained - a development which enabled the UK Government to persuade the European Human Rights Commission in Earl Spencer v United Kingdom (1998) 25 EHRR CD 105 that English law of confidence provided an adequate remedy to restrain the publication of private information about the applicants' marriage and medical condition and photographs taken with a telephoto lens. These developments showed that the basic value protected by the law in such cases was privacy. Sedley LJ said, at p 1001, para 126:
29. I read these remarks as suggesting that, in relation to the publication of personal information obtained by intrusion, the common law of breach of confidence has reached the point at which a confidential relationship has become unnecessary. As the underlying value protected is privacy, the action might as well be renamed invasion of privacy. "To say this" said Sedley LJ, at p 1001, para 125, "is in my belief to say little, save by way of a label, that our courts have not said already over the years."
30. I do not understand Sedley LJ to have been advocating the creation of a high-level principle of invasion of privacy. His observations are in my opinion no more (although certainly no less) than a plea for the extension and possibly renaming of the old action for breach of confidence. As Buxton LJ pointed out in this case in the Court of Appeal, at  QB 1334, 1361-1362, paras 96-99, such an extension would go further than any English court has yet gone and would be contrary to some cases (such as Kaye v Robertson  FSR 62) in which it positively declined to do so. The question must wait for another day. But Sedley LJ's dictum does not support a principle of privacy so abstract as to include the circumstances of the present case.
31. There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. The English common law is familiar with the notion of underlying values - principles only in the broadest sense - which direct its development. A famous example is Derbyshire County Council v Times Newspapers Ltd  AC 534, in which freedom of speech was the underlying value which supported the decision to lay down the specific rule that a local authority could not sue for libel. But no one has suggested that freedom of speech is in itself a legal principle which is capable of sufficient definition to enable one to deduce specific rules to be applied in concrete cases. That is not the way the common law works.