Wainwright v Home Office

JurisdictionUK Non-devolved
Judgment Date16 October 2003
Neutral Citation[2003] UKHL 53
Date16 October 2003
CourtHouse of Lords

and another

Home Office

[2003] UKHL 53

The Appellate Committee comprised:

Lord Bingham of Cornhill

Lord Hoffmann

Lord Hope of Craighead

Lord Hutton

Lord Scott of Foscote



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.


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 McGonigal, 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 its 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 in favour of 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...

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