Judgments - Wainwright and another (Appellants) v.
Home Office (Respondents)
OPINIONS
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Wainwright and another (Appellants)
v.
Home Office (Respondents)
ON
THURSDAY 16 OCTOBER 2003
The Appellate Committee comprised:
Lord Bingham of Cornhill
Lord Hoffmann
Lord Hope of Craighead
Lord Hutton
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)[2003] UKHL 53
LORD BINGHAM OF CORNHILL
My Lords,
- 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.
LORD HOFFMANN
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 (consolidated 1998)
confers a power in general terms to search any person entering a prison.
- 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.
- 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.
- 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.
- Judge McGonigall, 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": [2002] 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.
- 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.
- 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 [1965] 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 their own conditions of liability.
- 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 [1984] 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.
- 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 [1897] 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.
- 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.
- 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.
- 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 against the Wainwrights with the exception of the damages
for battery, to which they attributed £3,750 of the £4,500 awarded by
the judge.
- 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 [1897] 2 QB 57.
- 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.
- 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:
"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'. "
- 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.
- 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 [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] QB 727 was held by the
House of Lords in Hunter v Canary Wharf Ltd [1997] AC 655 to be a step too far. The gap was filled by the 1997 Act.
- 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 [1979] 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:
"I am not unduly troubled by the absence of English authority:
there has to be a first time for everything, and if the principles of
English law, and not least analogies from the existing rules, together
with the requirements of justice and common sense, pointed firmly to
such a right existing, then I think the court should not be deterred
from recognising the right. On the other hand, it is no function of
the courts to legislate in a new field. The extension of the existing
laws and principles is one thing, the creation of an altogether new
right is another."
- 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:
"I readily accept that if the question before me were one of
construing a statute enacted with the purpose of giving effect to
obligations imposed by the Convention, the court would readily seek to
construe the legislation in a way that would effectuate the Convention
rather than frustrate it. However, no relevant legislation of that
sort is in existence. 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."
- 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:
"Give full rein to the Convention, and it is clear that when the
object of the surveillance is the detection of crime, the question is
not whether there ought to be a general prohibition of all
surveillance, but in what circumstances, and subject to what
conditions and restrictions, it ought to be permitted. It is those
circumstances, conditions and restrictions which are at the centre of
this case; and yet it is they which are the least suitable for
determination by judicial decision."
- 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) [1997] 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.
- The absence of any general cause of action
for invasion of privacy was again acknowledged by the Court of Appeal in
Kaye v Robertson [1991] 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:
"The facts of the present case are a graphic illustration of the
desirability of Parliament considering whether and in what
circumstances statutory provision can be made to protect the privacy
of individuals."
- Bingham LJ likewise said, at p 70:
"The problems of defining and limiting a tort of privacy are
formidable but the present case strengthens my hope that the review
now in progress may prove fruitful."
- 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."
- 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.
- 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 [1991] 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.
- The claimants placed particular reliance
upon the judgment of Sedley LJ in Douglas v Hello! Ltd [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 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:
"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."
- 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."
- 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 [2002] 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 [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.
- 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 [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.
- 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.
- 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 [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.
- 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 [2002] 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.
- 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.
- I turn next to the alternative argument
based upon Wilkinson v Downton [1897] 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.
- 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.
- The outcome of the case was approved and the
reasoning commented upon by the Court of Appeal in Janvier v
Sweeney [1919] 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.
- By this time, no one was troubled by
Victorian Railway Comrs v Coultas 13 App Cas 222. In Dulieu v
White & Sons [1901] 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 [1897] 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.
- By the time of Janvier v Sweeney
[1919] 2 KB 316, therefore, the law was able comfortably to accommodate
the facts of Wilkinson v Downton [1897] 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.
- 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 [2001] 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.
- In Khorasandjian v Bush [1993] 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 [1997] 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:
"The law of harassment has now been put on a statutory basis…and
it is unnecessary to consider how the common law might have developed.
But as at present advised, I see no reason why a tort of intention
should be subject to the rule which excludes compensation for mere
distress, inconvenience or discomfort in actions based on
negligence…The policy considerations are quite different."
- 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 [1897] 2 QB 57.
- 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 [1919] 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.
- 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 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 [2002] 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:
"The deviations from the procedure laid down for strip-searches
were, in my judgment, not intended to increase the humiliation
necessarily involved but merely sloppiness."
- Even on the basis of a genuine intention to
cause distress, I would wish, as in Hunter's case [1997] 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.
- In my opinion, therefore, the claimants can
build nothing on Wilkinson v Downton [1897] 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 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 [2002] QB 1334, 1355-1356, paras 67-72, that Wilkinson v Downton has
nothing to do with trespass to the person.
- 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.
- 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).
- 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.
- Article 8 is more difficult. Buxton LJ
thought, at [2002] 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 [1992] 2 All ER 65.
- 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.
- I would therefore dismiss the appeal.
LORD HOPE OF CRAIGHEAD
My Lords,
- 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 HUTTON
My Lords,
- 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
My Lords,
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- I, too, would dismiss these appeals.
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