Wainwright v Home Office

The Claimants, a mother and son, were strip-searched for drugs on a prison visit in 1997 in breach of the Prison Rules and they were humiliated and distressed. The second Claimant, who was mentally impaired and suffered from cerebral palsy, developed PTSD. The judge held that trespass to the person, consisting of wilfully causing a person to do something to himself which infringed his right to privacy, had been committed against both Claimants and that trespass to the person, consisting of wilfully causing a person to do something calculated to cause him harm, had been committed against the second claimant in addition to a battery. He awarded basic and aggravated damages of £2,600 to the first Claimant and £4,500 to the second Claimant. The Court of Appeal allowed the Home Office’s appeal against the finding of trespass, dismissed the first claimant’s claim and reduced the award of damages to the second claimant. The Home Office did not appeal the finding of battery.

Whether English common law recognises a cause of action for invasion of privacy and/or for intentional infliction of emotional harm.

1. There was no common law tort of invasion of privacy; that creation of such a tort required a detailed approach which could only be achieved by legislation rather than the broad brush of common law principle; that adoption of a right to privacy as a principle of law in itself was not necessary to comply with Article 8 of the European Convention on Human Rights; and that any gaps in existing remedies for breaches of Article 8 by public authorities had been filled by sections 6 and 7 Human Rights Act 1998;
2. That in so far as there might be a tort of intention to cause harm under which damages for distress which did not amount to recognised psychiatric injury might be recoverable the necessary intention was not established on the facts of the case.

This is the first time the House of Lords has been asked to declare whether an action for invasion of privacy exists in English law. The case confirmed the widely held view that declaration of a general right to privacy is beyond the acceptable limits of judicial development of the common law. But the precise demarcation between judicial development and the need for legislation is not clear. Beyond leaving for another day the question of whether the action for breach of confidence might be further expanded and renamed ‘invasion of privacy’ the judgment gives little indication of the potential limits. Given that Parliament has no intention of enacting such legislation there will inevitably be cases where victims of violations of Article 8 ECHR will still have to apply to Strasbourg for a remedy.

• Law lords rule there is no right to privacy - The Guardian