Too distressing for words? In Wainwright, the Lords reject a new common law tort of injury to feelings…
The House of Lords' decision in Wainwright v Home Office  UKHL 53 shows the United Kingdom's most senior court taking a restrictive approach to the issue of privacy. The case concerned strip-searching of prison visitors. On 2 January 1997, a mother and her son visited a relative, who was in jail awaiting trial for murder. The prison authorities suspected that the relative had been dealing drugs in prison, and required his visitors to be strip-searched. Rule 86(1) of the Prison Rules 1964 (consolidated 1998) permits searches of any visitor entering a prison.
The prison's internal code of practice on the conduct of searches was modelled on that of the police. It provided that searches had to be in a completely private room; that the visitor should not be asked to take all their clothes at once, but should expose first the upper half and then the lower half of the body, and not to be completely undressed; that no part of the visitor's body could be touched apart from hair, ears, and mouth, and that a consent form should be signed in advance.
Mrs Wainwright, and her son Alan (who had learning and physical difficulties), consented to being strip-searched, albeit reluctantly. They were asked to go to separate rooms, and searched. Their action was commenced late in 1999.
Mrs Wainwright said that the room in which she was searched had an uncurtained window. Alan alleged that the person who searched him had touched his penis to lift the foreskin. They were not asked to sign the consent forms until afterwards. None of the prison staff could remember the incident. Mrs Wainwright complained of the infliction of emotional distress. Alan claimed to have suffered post-traumatic stress disorder as a result.
The trial in the county court took place in April 2001, by which time the Human Rights Act 1998 was in force. Judge McGonigall accepted that the prison staff had not set out to humiliate the Wainwrights, and any deviation from the proper procedures was mere sloppiness. Nevertheless, he accepted the Claimants' argument that the searches could not be legally justified as a proper exercise of the authorities' power, under Rule 86(1) of the Prison Rules. He held that the strip-searches were disproportionate and unnecessary, because the prison authorities could have searched the prisoner immediately after the visit instead. He also accepted Alan's account of what had been done to him, and awarded him £4,500 (including £1, 000 aggravated damaged) for trespass.
Mrs Wainwright's distress did not amount to psychiatric injury. The judge drew the bold conclusion that tort law should provide a remedy for any distress caused by the infringement of the right of privacy protected by Article 8 of the Convention on Human Rights. He awarded her £2, 600 (including £1,000 aggravated damages). The Home Office appealed to the Court of Appeal, which disagreed that the searches were unnecessary. It set aside the ruling in respect of Mrs Wainwright, and reduced Alan's damages by £750. The Claimants appealed to the Lords. Lord Hoffman gave the lead judgment, with which Lords Bingham, Hope and Hutton agreed. So did Lord Scott, who added some views of his own.
The Lords' Analysis
The key issue was: did Mrs Wainwright have a cause of action? It was not enough for her to argue that the searches were done without statutory authority. As Sir Robert Megarry V-C said in the famous phone-tapping case of Malone v Metropolitan Police Commr  Ch 344 at 357: "England… is not a country where everything is forbidden except what is expressly permitted: it is a country where everything is permitted except what is expressly forbidden". People do things all the time without statutory authority.
Mrs Wainwright's counsel argued for the existence of a general tort of invasion of privacy, under which the searches were actionable, and damages for emotional distress recoverable. Alternatively, they relied on Wilkinson v Downton  2 QB 57, where a practical joker was held liable to compensate his victim after shocking her so much that she fell seriously ill, on the footing that he had intentionally inflicted harm.
However, the Lords declined the invitation to approve the emergence of a general tort of invasion of privacy at common law. They noted some previous straws in the wind, notably Sedley LJ's observation in Douglas v Hello! Ltd  QB 967 at 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."
Lord Hoffman commented at para. 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."
He categorised the notion of privacy as a value that is respected by English law, instead of being an overarching principle of English law. He noted that English common law has not followed U.S. tort law in developing the "right to be let alone". This is a portmanteau term for a number of loosely allied torts in the U.S.A, namely: "(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" (Wainwright, para. 17). By contrast, said Lord Hoffman, tort in English common law includes trespass, nuisance, defamation and malicious falsehood. Then there is the equitable action for breach of confidence.
He acknowledged that this left gaps in our domestic law, but refused to go beyond the line of authority typified by Malone, and Kaye v Robertson  FSR 62 (where a famous TV star was photographed in hospital, while recovering from major injuries). Those cases concluded that English law does not recognise a tort of invasion of privacy, as such. So could the new Human Rights Act 1998 help? Lord Hoffman reserved his position on this, because the claim was not brought under the Act, but at common law.
Article 8.1 of the European Convention does not, strictly, guarantee a right to privacy as such. What it guarantees everyone is "the right to respect for his private and family life, his home and his correspondence [italics added]." Lord Hoffman cited the admissibility decision of the European Commission of Human Rights in Earl Spencer v United Kingdom (1998) 25 EHRR CD 105. This rejected the Spencers' complaint, because they had not exhausted their domestic remedies. They could have taken an action for breach of confidence to restrain the publication of private information about their marriage and Lady Spencer's medical condition, and of photographs of her taken with a telephoto lens. Lord Hoffman said that nothing in the jurisprudence of the European Court of Human Rights (ECtHR) suggests that the adoption of some high-level right of privacy was necessary to comply with Article 8. He suggested that if, in future, a claim was brought alleging breach of Article 8 by a public authority, much would depend on whether the incident was accidental, negligent or intentional: para. 51.
He also distinguished the ECtHR's recent decision in Peck v United Kingdom (2003) 36 EHRR 41: "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 [op. cit.], 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." (para. 33).
That left Wilkinson v Downton, and the law on nervous shock. Lord Hoffman said that intention is critical: "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" (para. 44). In his opinion, in order to draw a principled distinction to the general rule that damages for mere distress are not recoverable, one must prove an actual intention to cause harm: an imputed intention will not do.
He reserved his position on whether, even in a case where an intention to cause harm could be proved, 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" (paras. 45-6). In his view, the common law should be cautious, in the public interest, before allowing the law to develop in a way that would provide a legal remedy for a single boorish incident.
Lord Scott agreed (para. 62):
"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."
The decision respects the principle of English law that damages for hurt feelings are not usually recoverable (save in limited circumstances, such as breach of a contract to provide peace of mind, or commission of the statutory tort of discrimination). The Lords' ruling upholds this robust approach to life: just because someone hurts your feelings does not mean that you can sue him for damages.
It is true that visiting a relative in prison is not a situation in which one either expects, or should have to put up with, ritual humiliation of any kind. Presumably Lord Scott was putting down a marker for other types of case, such as bullying at work or at school, where claimants might otherwise be tempted to sue. As well as closing the door on a general tort of privacy, it seems the Lords are exercised by a more pressing policy consideration: how to rein in a compensation culture in which claims for distress (without more) demand official recognition.
The Lords are not the only critics of this societal trend. Professor Frank Furedi, a sociologist at the University of Kent, analyses the problematic nature of claims for distress in a new book, Therapy Culture (Routledge). Furedi says: "Since the feeling of being a victim is a highly subjective one, society finds it difficult to draw any clear definitions about what kind of encounters and incidents should be compensated…" (p. 185). There is an obvious risk that by allowing legal recognition of claims for outraged sensibilities, whether at common law or under the Human Rights Act 1998, one would end up trivialising the law's concerns and, ultimately, bringing it into disrepute.
This article was first published in the New Law Journal Vol. 153 No. 7104 p.1694, 14 November 2003