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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
    1. R v A [2001] UKHL 25; [2002] 1 AC 45; [2001] 3 All ER 1; [2001] 2 WLR 1546
    2. Re S (Minors) (Care order: implementation of care plan) [2002] UKHL 10: [2002] 2 All ER 192
    3. Bellinger v Bellinger [2003] UKHL 21; [2003] 2 AC 467; [2003] 2 All ER 593
    4. Ghaidan v Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 All ER 411
    5. Aston Cantlow...Parochial Church Council v Wallbank and another [2003] UKHL 37, [2003] 3 All ER 1213
    6. R (on the application of Beer) v Hampshire Farmers Market Ltd [2004] 1 WLR 233
    7. Wainwright and another v Home Office [2003] UKHL 53, [2004] 2 AC 406, [2003] 4 All ER 969
    8. YL v Birmingham City Council and others [2007] UKHL 27, [2008] 1 AC 95
    9. R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100; [2006] 2 WLR 719
    10. Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Wainwright and another v Home Office [2003] UKHL 53, [2004] 2 AC 406, [2003] 4 All ER 969


LORD HOFFMANN
:

[2] My Lords, 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, SI 1964/388 (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.....


[14] The Wainwrights...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 1998 Act. 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 [1897] 2 QB 57, [1895-9] All ER Rep 267.


[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 Harv 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 edn, 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 edn, 1971) p 804, said:


'What has emerged is no very simple matter . . . it is not one tort, but a complex of four. To date the law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff "to be let alone".'


[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, had different elements and were subject to different defences (p 814).


[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 [2002] EWCA Civ 1373, [2003] 1 All ER 224, [2003] 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 [1993] 3 All ER 669, [1993] QB 727 was held by the House of Lords in Hunter v Canary Wharf Ltd, Hunter v London Docklands Development Corp [1997] 2 All ER 426, [1997] 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 Megarry V-C in Malone v Comr of Police of the Metropolis [1979] 2 All ER 620 at 642-649, [1979] Ch 344 at 372-381. I shall be sparing in citation but the whole of Megarry V-C's treatment of the subject deserves careful reading....

[28] The claimants placed particular reliance upon the judgment of Sedley LJ in Douglas v Hello! Ltd [2001] 2 All ER 289, [2001] 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 United Kingdom government to persuade the European Commission of Human Rights in Earl Spencer v UK (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 ([2001] 2 All ER 289 at 320, [2001] QB 967 at 1001 (para 126)):


'What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives. The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.'


[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 ([2001] 2 All ER 289 at 320, [2001] QB 967 at 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 ([2003] 3 All ER 943 at [96]-[99], [2002] QB 1334 at [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 [1991] 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 CC v Times Newspapers Ltd [1993] 1 All ER 1011, [1993] 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.


[32] Nor is there anything in the jurisprudence of the European Court of Human Rights which suggests that the adoption of some high level principle of privacy is necessary to comply with art 8 of the convention. The European Court is concerned only with whether English law provides an adequate remedy in a specific case in which it considers that there has been an invasion of privacy contrary to art 8(1) and not justifiable under art 8(2). So in Earl Spencer's case it was satisfied that the action for breach of confidence provided an adequate remedy for the Spencers' complaint and looked no further into the rest of the armoury of remedies available to the victims of other invasions of privacy. Likewise, in Peck v UK (2003) 13 BHRC 669 at 692 (para 103) the court expressed some impatience at being given a tour d'horizon of the remedies provided and to be provided by English law to deal with every imaginable kind of invasion of privacy. It was concerned with whether Mr Peck (who had been filmed in embarrassing circumstances by a CCTV camera) had an adequate remedy when the film was widely published by the media. It came to the conclusion that he did not.


[33] Counsel for the Wainwrights relied upon Peck's case as demonstrating the need for a general tort of invasion of privacy. But in my opinion it shows no more than the need, in English law, for a system of control of the use of film from CCTV cameras which shows greater sensitivity to the feelings of people who happen to have been caught by the lens. For the reasons so cogently explained by Megarry V-C in Malone v Comr of Police of the Metropolis [1979] 2 All ER 620, [1979] Ch 344, this is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.


[34] Furthermore, the coming into force of the 1998 Act weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies. Sections 6 and 7 of the Act are in themselves substantial gap fillers; if it is indeed the case that a person's rights under art 8 have been infringed by a public authority, he will have a statutory remedy. The creation of a general tort will, as Buxton LJ pointed out in the Court of Appeal ([2003] 3 All ER 943 at [92], [2003] QB 1334 at [92]) pre-empt the controversial question of the extent, if any, to which the convention requires the state to provide remedies for invasions of privacy by persons who are not public authorities.


[35] For these reasons I would reject the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy....


[48] Counsel for the Wainwrights submit that unless the law is extended to create a tort which covers the facts of the present case, it is inevitable that the European Court of Human Rights will find that the United Kingdom was in breach of its convention obligation to provide a remedy for infringements of convention rights. In addition to a breach of art 8, they say that the prison officers infringed their convention right under art 3 not to be subjected to degrading treatment.


[49] I have no doubt that there was no infringement of art 3. The conduct of the searches came nowhere near the degree of humiliation which has been held by the European Court of Human Rights to be degrading treatment in the cases on prison searches to which we were referred: see Valasinas v Lithuania [2001] ECHR 44558/98 (applicant made to strip naked and have his sexual organs touched in front of a woman); Iwanczuk v Poland [2001] ECHR 25196/94 (applicant ordered to strip naked and subjected to humiliating abuse by guards when he tried to exercise his right to vote in facilities provided in prison); Lorse v Netherlands [2003] ECHR 52750/99 (applicant strip searched weekly over six years in high security wing without sufficient security justification).


[50] In the present case, the judge found that the prison officers acted in good faith and that there had been no more than 'sloppiness' in the failures to comply with the rules. The prison officers did not wish to humiliate the claimants; the evidence of Mrs Wainwright was that they carried out the search in a matter-of-fact way and were speaking to each other about unrelated matters. The Wainwrights were upset about having to be searched but made no complaint about the manner of the search; Mrs Wainwright did not ask for the blind to be drawn over the window or to be allowed to take off her clothes in any particular order and both of them afterwards signed the consent form without reading it but also without protest. The only inexplicable act was the search of Alan's penis, which the prison officers were unable to explain because they could not remember having done it. But this has been fully compensated.


[51] Article 8 is more difficult. Buxton LJ thought ([2003] 3 All ER 943 at [62], [2002] QB 1334 at [62]), that the Wainwrights would have had a strong case for relief under s 7 if the 1998 Act had been in force. Speaking for myself, I am not so sure. Although art 8 guarantees a right of privacy, I do not think that it treats that right as having been invaded and requiring a remedy in damages, irrespective of whether the defendant acted intentionally, negligently or accidentally. It is one thing to wander carelessly into the wrong hotel bedroom and another to hide in the wardrobe to take photographs. Article 8 may justify a monetary remedy for an intentional invasion of privacy by a public authority, even if no damage is suffered other than distress for which damages are not ordinarily recoverable. It does not follow that a merely negligent act should, contrary to general principle, give rise to a claim for damages for distress because it affects privacy rather than some other interest like bodily safety: compare Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65.


[52] Be that as it may, a finding that there was a breach of art 8 will only demonstrate that there was a gap in the English remedies for invasion of privacy which has since been filled by ss 6 and 7 of the 1998 Act. It does not require that the courts should provide an alternative remedy which distorts the principles of the common law.


[53] I would therefore dismiss the appeal.