IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
|Royal Courts of Justice|
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUMMERY
LORD JUSTICE BUXTON
The Home Office
Appellant - and - Mary Jane Wainwright
Alan Joseph Wainwright
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR DAVID WILBY QC & MR ASHLEY SERR (INSTRUCTED BY DAVID A RESTON, YORK APPEARED FOR THE RESPONDENT)
Crown Copyright ©
Lord Woolf CJ:
i) wilfully causes a person to do something calculated to cause harm to him, namely to infringe his legal right to personal safety;
ii) wilfully causes a person to do something to himself which infringes his right of privacy?
i) if such conduct was tortious, whether, on the facts of this case (a) it was negatived by consent or (b) protected by statutory authority;
ii) whether the complainants were entitled to rely on s.3 of the Human Rights Act 1998 notwithstanding that the conduct complained of occurred on 2 January 1997, before the Human Rights Act came into force.
“Notice for the information of visitors or other persons entering an establishment
Please read carefully
The Governor has directed that, for the reasons explained to you, you should be strip-searched.
The police have been informed but cannot come to deal with the matter. The search will therefore be carried out by prison staff.
The procedure for the search is explained overleaf.
Please sign below if the search is taking place with your consent.
I have read this notice (or it has been read to me) and I understand it.
I agree to be strip-searched by prison staff.”
i) there was a pressing problem involving the prevalence of illicit drugs within the prison;
ii) visitors in general were a major source of such drugs and that all visitors were suspected of bringing in drugs until it was proved otherwise because all sorts of unlikely visitors had been known to bring in drugs;
iii) there were reasonable grounds for believing that Mrs Wainwright’s son, Patrick, had been obtaining illicit drugs.
iv) the claimants each consented to being strip-searched before they were searched although in each case they signed the consent forms after the search was complete or substantially complete;
v) the search of each of the complaints was not conducted in as seemly a manner as was consistent with discovering anything concealed;
vi) the officers honestly believed that they had a legal right to strip-search the claimants;
vii) Mrs Wainwright understood and was intended to understand that the officers had a legal right to strip-search the claimants;
viii) notwithstanding that each claimant consented to the strip-search, such consent was not a real consent because they were expressly told that if they did not consent the defendant would deny the claimants the proposed visit;
ix) further, such consent was not a real consent because it was represented to them that the officers had a legal right to strip-search them, which was untrue, although honestly believed;
x) any search under a power given by rule 86 of the Prison Rules 1964 was lawful only if it was conducted in as seemly a manner as was consistent with discovering anything concealed;
xi) the strip-search of the claimants was not a proportionate response to the objective of preventing that person from obtaining drugs from visitors and was therefore not permitted by that rule;
xii) the prison officers had no right to conduct a search.
THE STATUTORY AUTHORITY TO CONDUCT SEARCHES
i) Any person or vehicle entering or leaving a prison may be stopped, examined and searched.
i) Every prisoner shall be searched when taken into custody by an officer on his reception into a prison and subsequently as the Governor thinks necessary or as the Secretary of State may direct.
ii) A prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed.
iii) No person shall be stripped and searched in sight of another prisoner, or in the sight or presence of an officer not of the same sex.
The Human Rights Act Issue
i) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
ii) This section applies to primary legislation and subordinate legislation whenever enacted.
“(i) Paragraph (b) subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the Act in question took place; but otherwise that subsection does not apply to an Act taking place before the coming into force of that section.”
“6. It is clear that the 1998 Act must be given its full import and that long or well entrenched ideas may have to be put aside, sacred cows culled. Since, however, the Act did not come into force (apart from limited provisions) until the Secretary of State had appointed a day or days for the act or parts of it to come into force, and since there is a presumption against retrospectivity in legislation, it is not to be assumed a priori that Convention rights, however commendable, are to be enforceable in national courts in respect of past events. The question is whether the Act has provided for rights to be enforceable in respect of such past events or more precisely whether a court reviewing the legality of a direction to a jury at a criminal trial given before the Act came into force, which was in accordance with the law at the time, has to be judged by the standards of the Convention.”
“12. Moreover, even if there is a basis for the contention that the appellant’s argument based on sections 7 and 22 do not involve retrospectivity, it seems to me that the obvious effect of section 6 as interpreted by the appellant is to impose on the House the current duty of quashing retrospectively a conviction which was good as the law stood at the time.”
“There is nothing in the 1998 Act to indicate that that subsection [3(1)] is to be applied retrospectively to acts of courts or tribunals which took place before the coming into force of s.3 (1).”
“I agree with the Vice Chancellor that the answer to this argument is to be found in s.22 (4). Parliament made its choice as to the extent to which the 1998 Act should have affect retrospectively. It did so by expressing it in an enactment, and in my opinion no other reading of s.22 (4) than that which I have indicated is possible.”
"The effect of section 22 (4) is not in doubt. It provides (by the second limb of the section) that, in general, section 7 (1) does not apply to an act taking place before the 2nd October 2000. So, for example, a person who claims that the public authority has acted in a way which is incompatible with the Convention rights (contrary to section 6 (1) of the 1998 Act) cannot bring proceedings against the authority under the 1998 Act (pursuant to section 7 (1) (a)) if the unlawful act took place before 2nd October 2000."
“In my view s.3, only became obligatory on courts on 2 October 2000. The rule of construction which it expresses applies to all legislation whenever enacted.”
“In general Acts of Parliament should not be read as operating so as to affect things done prior to their coming into effect. I see no reason why that principle should not apply to the Human Rights Act 1998. If a departure from the usual course was intended I would expect that to have been clearly stated.”
“In my opinion however the usual presumption that statutes are not intended to be retrospective applies to section 3(1)”
“So I would not extend retrospectivity to section 3(1), in the absence of an express provision to that effect”.
Wilkinson v Downton
“The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”
“It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs. The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable.”
"For the tort to be committed, as with any other action on the case, there has to be actual damage. The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant’s interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not "mean” it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as a result of his behaviour and his deliberately engaging in that behaviour."
LORD JUSTICE MUMMERY :
(1) Invasion of privacy at common law and in equity.
“…it is generally recognised that at the present time there is no existing common law remedy for invasion of privacy as such.”
“ It is well established that English law does not recognise a right of privacy as such.”
(2) Section 3 (1) Human Rights Act 1998.
LORD JUSTICE BUXTON:
An analysis of the judge’s reasoning
“70. It is clear that the original tort of trespass to the person, namely battery, has been extended in a number of ways beyond its original scope of protecting the interest of the victim in freedom from bodily harm. In the form of trespass to the person known as assault the interest of the victim which is protected is the victim’s interest in freedom from a particular form of anxiety, namely the apprehension of bodily harm. The form of trespass to the person involve in false imprisonment protects the interest in freedom from confinement or freedom of movement. The tort of trespass to the person protects, therefore, a wider range of interests than protection from bodily harm.
71. Another element in the law of torts generally and trespass to the person in particular is the conduct of the defendant. Again the original tort focused on some physical act of the defendant, namely touching the plaintiff or doing something which causes the plaintiff to apprehend physical contact. In Wilkinson v Downton  2 QB 57 and the subsequent Court of Appeal decision in Janvier v Sweeney  2 K.B. 316 the Courts extended the types of conduct which could constitute the tort of trespass to the person to include words intentionally uttered which caused physical harm. In Burnett v George  1 W.L.R. 156 the principle derived from these two cases, namely that there is a good cause of action if A wilfully does something calculated to cause harm to B, namely infringing B’s right to personal safety, and does in fact cause physical harm to B, was extended to a case of harassment. The conduct involved in trespass to the person includes conduct which involves no bodily contact with the victim but nevertheless has an effect on the victim by infringing some interest of the victim which the law protects.
72. In this case the essence of the complaint is that the prison officers caused Mrs Wainwright and her son to take their clothes off and thereby suffer distress and humiliation in the case of both Claimants and damage to health in the case of Alan Wainwright. The law of torts already recognizes causes of action where the defendant induces the claimant to act to the claimant’s detriment. Misrepresentation is one example and intimidation another. It does not, therefore, seem to me to be a significant extension of the principle in Wilkinson v Downton to hold that if A wilfully causes B to do something which is calculated to cause harm to B, namely infringe B’s legal right to personal safety, and does infact cause physical harm to B, that constitutes a valid cause of action unless it can be justified in some way. I would hold, therefore, that if the prison officers caused Alan Wainwright to take his clothes off and that was calculated to cause a physical harm, namely illness, to Alan Wainwright there is a valid cause of action in trespass to the person unless their conduct can be justified.
74. The same principle would apply to Mrs Wainwright but in her case the strip-search did not cause any physical illness. This raises the question whether this particular form of trespass to the person should be limited to protecting the victim’s right to personal safety or whether it should be extended to other rights, including in particular the right of privacy. In the case of assault the law of trespass protects the victim’s interest in being protected from mental distress caused by the apprehension of physical harm. Other forms of trespass to the person protect a victim’s interest in freedom of movement or even freedom from harm caused by verbal practical jokes in bad taste. It seems difficult to justify a situation in which the same act (inducing someone to take their clothes off) gives the victim a cause of action if the victim succumbs to some form of illness but denies a remedy to a more robust victim who merely suffers distress and humiliation.
75. In Douglas and Others v Hello! Limited (Judgment 21 December 2000) the Court of Appeal discharged an injunction granted against Hello! Magazine from publishing unauthorized photographs of a wedding. Another magazine had the exclusive rights to photograph the wedding. Lord Justice Sedley said that a point had been reached where it could be said with confidence that the law recognized and would appropriately protect a right of personal privacy for two reasons. The first reason was that there was a powerfully arguable case that the bride and groom had a right of privacy which English Law would recognize and, where appropriate, protect. The second reason was that the Human Rights Act 1998 required courts to give appropriate effect to the right of respect for private and family life set out in Article 8 of the ECHR. Lord Justice Keene said that it seemed unlikely that Kaye v Robertson, which held that that there was no actionable right of privacy in English Law, would be decided the same way on that aspect today. These dicta show how the attitude of the Courts to invasions of someone’s privacy have developed in recent years. There seems to me to be no valid objection to extending the tort of trespass to the person to protect an interest in privacy…….
…..[Counsel for the claimants] pointed out that in Brind v Secretary of State for the Home Department  1 All ER 720 the House of Lords had held in 1991 that any provision in domestic legislation which was capable of a meaning which either conformed to or conflicted with the ECHR would be construed in conformity with the ECHR on the basis that Parliament was to be presumed to have intended to legislate in accordance with the Convention. On analogous reasoning it appears to me that it was right to apply and, so far as appropriate, extend the common law so that it is also in conformity with the ECHR even before the passing of the 1998 Act. Sections 2 and 3 of that Act strengthen the force of that reasoning.
78. I conclude therefore that the tort of trespass of the person extends to situations where A causes B to do something to himself which infringes B’s right of privacy. The Defendant is liable to Mrs Wainwright and Alan Wainwright unless the Defendant can set up a valid defence. The two defences put forward are those of consent and legal justification.”
i) The tort of trespass to the person extends to interests other than protection from bodily harm.
ii) One example of such extension is to “words intentionally uttered which caused physical harm”, as in Wilkinson v Downton [paragraph 71].
iii) However, “physical harm” in that formulation means illness, which was proved in the case of Alan Wainwright but not in the case of Mrs Wainwright. Alan Wainwright could therefore recover under this head of tort, but Mrs Wainwright could not [paragraph 72]
iv) English law however recognises a tort of breach of privacy, independent of any change introduced by the Human Rights Act 1998, and therefore applicable to events occurring in January 1997. That tort, described as an aspect of trespass to the person, had been committed in relation to Mrs Wainwright, and also, in addition to the Wilkinson v Downton tort, in relation to Alan Wainwright. [paragraph 78].
The inappropriateness of trespass
Wilkinson v Downton
“The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff-that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant…..One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind.”
“act so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant.”
That, however, raises further difficulties, since although using the concept of intention it stops short of requiring actual intention, and rather speaks of “imputed” intention, in terms that would nowadays be analysed as referring to gross (objective) negligence.
“False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable.”
This statement is important, because in Khorasandjian v Bush  QB 727 at p 735G the majority in this court accepted it as a correct expression of the doctrine of Wilkinson v Downton and Janvier v Sweeney; and would have granted quia timet relief against such words that could be expected, if continued, to result in a recognisable psychiatric illness: which is how the majority, at p 376C, considered that “nervous shock” should now be understood. These observations were obiter, in view of the majority’s placing of liability on the basis of private nuisance; but they were fully considered and, because of their obiter nature have, as Mr Wilby QC urged upon us, escaped the condemnation by the House of Lords in Hunter v Canary Wharf  AC 655 of the nuisance aspects of Khorasandjian.
“one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it”
No doubt the outrageous nature of the defendant’s conduct was not far from the minds of the judges in Wilkinson v Downton and, in particular, Janvier v Sweeney. However, moral condemnation is not enough. What is required by the Khorasandjian formulation is knowledge that the words are likely to cause, that is to say subjective recklessness as to the causation of, physical injury in the sense of recognisable psychiatric illness. Intention or recklessness merely as to severe emotional distress, from which bodily harm happens in fact to result, is not enough.
“It would appear that any act deliberately designed to ‘infringe [the] legal right to personal safety’, albeit falling outside the torts of assault and battery, will now readily be classified as tortious.”
The authority cited for this proposition is Burrows v Azadani  1 WLR 1372. Since that case largely relied on that part of Khorasandjian that was disapproved in Canary Wharf; and in any event was an injunction case in which this court was of the view that conduct could be enjoined even if it was not in itself tortious; its authority in the present context must be open to question. And while it is correct that Clerk & Lindsell’s formulation does quote the ipsissima verba of Wright J, it leaves unresolved the uncertainties as to the ambit of the “right to personal safety” to which I have ventured to draw attention in paragraphs 75-76 above.
“The damage is physical harm or recognised psychiatric illness. The defendant must have intended to violate the claimant's interest in his freedom from such harm. The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not ‘mean’ it to do so. He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour”
and then referred in support of that formulation to the observations of Dillon LJ in Khorasandjian at  QB p735G. The court accordingly saw as equivalent in their effect the two formulations between which a distinction was drawn in the first two sentences of paragraph 79 above.
Privacy: the ECHR
“the claimants [are] seeking to rely on the Convention to change English substantive law…[the 1998 Act] certainly cannot be relied on to change substantive law by introducing a retrospective right to privacy which did not exist at common law”
“It seems to me that where Parliament has abstained from legislating on a point that is plainly suitable for legislation, it is indeed difficult for the court to lay down new rules of common law or equity that will carry out the Crown’s treaty obligations, or to discover for the first time that such rules have always existed.”
Some have argued that, with the advent of the Human Rights Act, it is possible to use the recognition of the courts as “public authorities” by s.6(3)(a) thereof to create private law rights broadly in the same verbal terms as the wording of the articles of the ECHR. There are many difficulties about that contention: I readily adopt the observation of Sedley LJ in paragraph 128 of Douglas that this also is not the place, at least without much fuller argument, in which to resolve such a large question. But the present importance of that issue is that it is seen to be the terms of the Human Rights Act, and not, as the judge thought, the direct application of the terms of the ECHR, that render it even arguable that the ECHR creates new torts in English private law.
“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.”
It will be noted that this formulation of the basis of recovery is distinctly different from that adopted by the judge, and discussed in paragraphs 91-92 above. Sedley LJ saw the tort as one existing in English private law, independently of the ECHR. True it is that at paragraph 111 he referred to the 1998 Act as “arguably [giving] the final impetus to the recognition of a right of privacy in English law”: which may of course raise some questions about the status of the tort in 1997. But in truth the process is seen as one of judicial development of the common law, with the ECHR serving as, at most, a catalyst for that development.
“If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the picture would…as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it [emphasis supplied]”
“[counsel] submitted that the plaintiff has a right of privacy with which the defendant was unreasonably interfering. But that argument is not open to him in the light of the decision of this court in Kaye v Robertson  FSR 62, confirming that English law has recognised no such right.”
“Privacy remains an interest unprotected by the English law of torts. However gross the invasion of the claimant’s privacy, that violation of privacy is not itself a tort.”
That English law provides no direct action for invasion of privacy is also the view of the learned editor of the fifteenth edition of Winfield and Jolowicz on Tort (1998), at pp 464-465; and of Sir Brian Neill in his essay in the important collection Protecting Privacy (ed. Markesinis, 1999), at p.17.
“Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be provided by intrusion upon the domestic circle….When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.”
It may be doubted whether a judge in 2001 would feel able to advance quite that justification for awarding damages for breach of privacy.
Privacy: remoteness of damage
1. Two officers will be present. No person of the opposite sex will be present.
2. You will not be required to be fully undressed at any stage.
3. You will be asked to remove clothes from one half of your body, and pass them to an officer so that they may be examined. Your body will then be examined briefly so that the officers can see if anything is concealed. The clothes will then be returned to you without delay and you will be given time to put them on.
4. The procedure will then be repeated for the other half of your body.
5. The soles of your feet will be checked.
6. When your upper body is undressed, you may be required to hold your arms up.
7. When your lower body is undressed, you may be required to position yourself in such a way as to enable staff to observe whether anything is hidden in the genital and anal areas. Your body will not be touched during the process.
8. If you have long hair, it may be necessary for an officer to search it. It may also be necessary for an officer to check your ears, and mouth. You will not be touched otherwise.
“Any person or vehicle entering or leaving a prison may be stopped, examined and searched”
and rule 39(2), relating to searches of prisoners, which provides that
“a prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed.”
Expressio unius, said the Home Office, exclusio alterius. The search of a visitor does not have to be seemly.
Disposal of the appeal++
Order: Appeal allowed; Mrs Wainwright's claim dismissed; Mr Wainwright's claim reduced to £3,750; appellants to have costs against Mrs Wainwright, not to be enforced without leave of court; permission to appeal to the House of Lords granted.