Wainwright and another (Appellants) v. Home Office (Respondents)
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 article 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 article 8(1) and not justifiable under article 8(2). So in Earl Spencer v United Kingdom 25 EHRR CD 105 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 United Kingdom (2003) 36 EHRR 41 the court expressed some impatience, at paragraph 103, 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 Sir Robert Megarry in Malone v Metropolitan Police Comr  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 Human Rights Act 1998 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 article 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, at  QB 1334, 1360, para 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.
36. I turn next to the alternative argument based upon Wilkinson v Downton  2 QB 57. This is a case which has been far more often discussed than applied. Thomas Wilkinson, landlord of the Albion public house in Limehouse, went by train to the races at Harlow, leaving his wife Lavinia behind the bar. Downton was a customer who decided to play what he would no doubt have described as a practical joke on Mrs Wilkinson. He went into the Albion and told her that her husband had decided to return in a horse-drawn vehicle which had been involved in an accident in which he had been seriously injured. The story was completely false and Mr Wilkinson returned safely by train later that evening. But the effect on Mrs Wilkinson was dramatic. Her hair turned white and she became so ill that for some time her life was thought in danger. The jury awarded her £100 for nervous shock and the question for the judge on further consideration was whether she had a cause of action.
37. The difficulty in the judge's way was the decision of the Privy Council in Victorian Railway Comrs v Coultas (1888) 13 App Cas 222, in which it had been said that nervous shock was too remote a consequence of a negligent act (in that case, putting the plaintiff in imminent fear of being run down by a train) to be a recoverable head of damages. RS Wright J distinguished the case on the ground that Downton was not merely negligent but had intended to cause injury. Quite what the judge meant by this is not altogether clear; Downton obviously did not intend to cause any kind of injury but merely to give Mrs Wilkinson a fright. The judge said, however, at p 59, that as what he said could not fail to produce grave effects "upon any but an exceptionally indifferent person", an intention to cause such effects should be "imputed" to him.
38. The outcome of the case was approved and the reasoning commented upon by the Court of Appeal in Janvier v Sweeney  2 KB 316. During the First World War Mlle Janvier lived as a paid companion in a house in Mayfair and corresponded with her German lover who was interned as an enemy alien on the Isle of Man. Sweeney was a private detective who wanted secretly to obtain some of her employer's documents and sent his assistant to induce her to co-operate by pretending to be from Scotland Yard and saying that the authorities wanted her because she was corresponding with a German spy. Mlle Janvier suffered severe nervous shock from which she took a long time to recover. The jury awarded her £250.
39. By this time, no one was troubled by Victorian Railway Comrs v Coultas 13 App Cas 222. In Dulieu v White & Sons  2 KB 669 the Divisional Court had declined to follow it; Phillimore J said, at p 683, that in principle "terror wrongfully induced and inducing physical mischief gives a cause of action". So on that basis Mlle Janvier was entitled to succeed whether the detectives intended to cause her injury or were merely negligent as to the consequences of their threats. Duke LJ observed, at p 326, that the case was stronger than Wilkinson v Downton  2 QB 57 because Downton had intended merely to play a practical joke and not to commit a wrongful act. The detectives, on the other hand, intended to blackmail the plaintiff to attain an unlawful object.
40. By the time of Janvier v Sweeney  2 KB 316, therefore, the law was able comfortably to accommodate the facts of Wilkinson v Downton  2 QB 57 in the law of nervous shock caused by negligence. It was unnecessary to fashion a tort of intention or to discuss what the requisite intention, actual or imputed, should be. Indeed, the remark of Duke LJ to which I have referred suggests that he did not take seriously the idea that Downton had in any sense intended to cause injury.
41. Commentators and counsel have nevertheless been unwilling to allow Wilkinson v Downton to disappear beneath the surface of the law of negligence. Although, in cases of actual psychiatric injury, there is no point in arguing about whether the injury was in some sense intentional if negligence will do just as well, it has been suggested (as the claimants submit in this case) that damages for distress falling short of psychiatric injury can be recovered if there was an intention to cause it. This submission was squarely put to the Court of Appeal in v Wong v Parkside Health NHS Trust  EWCA Civ 1721; The Times, 7 December 2001 and rejected. Hale LJ said that before the passing of the Protection from Harassment Act 1997 there was no tort of intentional harassment which gave a remedy for anything less than physical or psychiatric injury. That leaves Wilkinson v Downton with no leading role in the modern law.
42. In Khorasandjian v Bush  QB 727 the Court of Appeal, faced with the absence of a tort of causing distress by harassment, tried to press into service the action for private nuisance. In Hunter v Canary Wharf Ltd  AC 655, as I have already mentioned, the House of Lords regarded this as illegitimate and, in view of the passing of the 1997 Act, unnecessary. I did however observe, at p 707, that:
43. Mr Wilby said that the Court of Appeal in Wong's case should have adopted this remark and awarded Ms Wong damages for distress caused by intentional harassment before the 1997 Act came into force. Likewise, the prison officers in this case did acts calculated to cause distress to the Wainwrights and therefore should be liable on the basis of imputed intention as in Wilkinson v Downton  2 QB 57.
44. I do not resile from the proposition that the policy considerations which limit the heads of recoverable damage in negligence do not apply equally to torts of intention. If someone actually intends to cause harm by a wrongful act and does so, there is ordinarily no reason why he should not have to pay compensation. But I think that if you adopt such a principle, you have to be very careful about what you mean by intend. In Wilkinson v Downton RS Wright J wanted to water down the concept of intention as much as possible. He clearly thought, as the Court of Appeal did afterwards in Janvier v Sweeney  2 KB 316, that the plaintiff should succeed whether the conduct of the defendant was intentional or negligent. But the Victorian Railway Comrs case 13 App Cas 222 prevented him from saying so. So he devised a concept of imputed intention which sailed as close to negligence as he felt he could go.
45. If, on the other hand, one is going to draw a principled distinction which justifies abandoning the rule that damages for mere distress are not recoverable, imputed intention will not do. The defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not. Lord Woolf CJ, as I read his judgment, at  QB 1334, 1350, paras 50-51, might have been inclined to accept such a principle. But the facts did not support a claim on this basis. The judge made no finding that the prison officers intended to cause distress or realized that they were acting without justification in asking the Wainwrights to strip. He said, at paragraph 83, that they had acted in good faith and, at paragraph 121, that:
46. Even on the basis of a genuine intention to cause distress, I would wish, as in Hunter's case  AC 655, to reserve my opinion on whether compensation should be recoverable. In institutions and workplaces all over the country, people constantly do and say things with the intention of causing distress and humiliation to others. This shows lack of consideration and appalling manners but I am not sure that the right way to deal with it is always by litigation. The Protection from Harassment Act 1997 defines harassment in section 1(1) as a "course of conduct" amounting to harassment and provides by section 7(3) that a course of conduct must involve conduct on at least two occasions. If these requirements are satisfied, the claimant may pursue a civil remedy for damages for anxiety: section 3(2). The requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident. It may be that any development of the common law should show similar caution.
47. In my opinion, therefore, the claimants can build nothing on Wilkinson v Downton  2 QB 57. It does not provide a remedy for distress which does not amount to recognized psychiatric injury and so far as there may be a tort of intention under which such damage is recoverable, the necessary intention was not established. I am also in complete agreement with Buxton LJ, at  QB 1334, 1355-1356, paras 67-72, that Wilkinson v Downton has nothing to do with trespass to the person.
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 article 8, they say that the prison officers infringed their Convention right under article 3 not to be subjected to degrading treatment.
49. I have no doubt that there was no infringement of article 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 Application No 44558/98 (unreported) 24 July 2001 (applicant made to strip naked and have his sexual organs touched in front of a woman); Iwanczuk v Poland Application No 25196/94 (unreported) 15 November 2001 (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); Lorsé v The Netherlands Application No 52750/99 (unreported) 4 February 2003 (applicant strip searched weekly over 6 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, at  QB 1334, 1352, para 62, that the Wainwrights would have had a strong case for relief under section 7 if the 1998 Act had been in force. Speaking for myself, I am not so sure. Although article 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  2 All ER 65.
52. Be that as it may, a finding that there was a breach of article 8 will only demonstrate that there was a gap in the English remedies for invasion of privacy which has since been filled by sections 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.
LORD HOPE OF CRAIGHEAD
54. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons which he gives I too would dismiss this appeal.
55. I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons which he gives I too would dismiss this appeal.
LORD SCOTT OF FOSCOTE
56. I have had the advantage of reading in advance the opinion of my noble and learned friend Lord Hoffmann and am in full agreement with his analysis and exposition of the principles of law applicable to this case.
57. The essence of the complaint of each claimant is that he or she was subjected to conduct by the prison officers at Armley Prison, Leeds, that was calculated to, and did, cause humiliation and distress. The main issue is whether this conduct was tortious. In the case of each the strip search was carried out in a manner that, in a number of respects, was in breach of the procedures prescribed for strip searches by the internal rules of Armley Prison. And whether or not it was the intention of the prison officers to humiliate and cause distress to Mrs Wainwright and to Alan, it must, in my opinion, be accepted that the manner in which the strip searches were carried out was calculated (in an objective sense) to produce and did in fact, in relation to each of them, produce that result. I need not rehearse the relevant core facts. They are set out in paragraph 5 of Lord Hoffmann's opinion.
58. But there is an important difference between the case of Alan Wainwright and that of Mrs Wainwright. In the course of, and as part of, the strip search of Alan, one of the prison officers poked a finger into Alan's armpits, handled his penis and pulled back his foreskin. It is conceded by the defendant that this touching of Alan constituted battery. The commission of the battery, being part of the conduct of the strip search, was inextricably associated with the overall humiliation and distress caused to Alan by the strip search. No justification for the handling of Alan's penis in the way described, or indeed for any of the touching of him, was offered by the prison officers. They said they had no recollection of the strip searching of Alan but that they would, when carrying out a strip search, have followed the prescribed procedure and avoided any touching of the person being searched. But the trial judge accepted Alan's evidence to the contrary of what they had done to him. Counsel for the defendant, the Secretary of State, did not suggest that there could ever be circumstances in which a strip search with a view to discovering the presence of drugs on the person being searched would require the foreskin of the penis to be pulled back, or indeed the penis to be touched at all. For my part I am unable to understand how in any circumstances the pulling back of the foreskin could be a necessary part of a search for drugs.
59. The pulling back of Alan Wainwright's foreskin by the prison officers constituted as gross an indignity as can be imagined. It undeniably warranted an award of aggravated damages. The judge awarded Alan £3500 ordinary damages and £1000 aggravated damages. He did so on the footing that even without the touching, ie without the battery, the conduct of the strip search would have been tortious. The Court of Appeal disagreed with that conclusion. They held that if there had been no touching the prison officers' conduct would not have been tortious and they, therefore, reduced Alan's damages by £750.
60. My Lords I am doubtful whether this reduction was justified. I agree with the Court of Appeal, and with your Lordships, that if there had been no touching, as there was not in Mrs Wainwright's case, no tort would have been committed. The unjustified infliction of humiliation and distress does not, without more, suffice at common law to constitute a tort. But the touching of Alan, in his armpits and on his penis, and the humiliation and distress thereby caused to him, cannot in my opinion be separated out from the strip search as a whole and the humiliation and distress caused by the strip search as a whole. The touching was an integral part of the strip search, neither minor nor incidental. Accordingly, I would have been receptive to an argument that, whatever view be taken about the existence at common law of a tort based on the infliction of humiliation and distress, the judge's award to Alan of £4500 should have been left untouched.
61. Moreover, the award to Alan of £1000 aggravated damages was, in my opinion, distinctly on the low side. It was the same amount as that awarded to Mrs Wainwright who did not suffer the humiliation of having her sexual parts handled. And the absence of any possible justification for the handling of Alan's penis allows the inference to be drawn that it was a form of bullying, done with the intention to humiliate. However, no argument on these lines was addressed to your Lordships. The claimants have not sought to distinguish their respective cases. They have concentrated on the issue of principle.
62. The important issue of principle is not, in my opinion, whether English common law recognises a tort of invasion of privacy. As Lord Hoffmann has demonstrated, whatever remedies may have been developed for misuse of confidential information, for certain types of trespass, for certain types of nuisance and for various other situations in which claimants may find themselves aggrieved by an invasion of what they conceive to be their privacy, the common law has not developed an overall remedy for the invasion of privacy. The issue of importance in the present case is whether the infliction of humiliation and distress by conduct calculated to humiliate and cause distress, is without more, tortious at common law. I am in full agreement with the reasons that have been given by Lord Hoffmann for concluding that it is not. Nor, in my opinion, should it be. Some institutions, schools, university colleges, regiments and the like (often bad ones) have initiation ceremonies and rites which newcomers are expected to undergo. Ritual humiliation is often a part of this. The authorities in charge of these institutions usually object to these practices and seek to put an end to any excesses. But why, absent any of the traditional nominate torts such as assault, battery, negligent causing of harm etc, should the law of tort intrude? If a shop assistant or a bouncer or barman at a club is publicly offensive to a customer, the customer may well be humiliated and distressed. But that is no sufficient reason why the law of tort should be fashioned and developed with a view to providing compensation in money to the victim.
63. Whether today, the Human Rights Act 1998 having come into effect, conduct similar to that inflicted on Mrs Wainwright and Alan Wainwright, but without any element of battery and without crossing the line into the territory of misfeasance in public office, should be categorised as tortious must be left to be decided when such a case arises. It is not necessary to decide now whether such conduct would constitute a breach of article 8 or of article 3 of the Convention.