Invasion of privacy - visitors to prison subjected to intimate strip-search - no cause of action

Wainwright and another v Home Office [2003] UKHL 53: HL (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craig-head, Lord Hutton and Lord Scott of Foscote): 16 October 2003

The claimants went to visit a relative in prison in 1997.

The relative was suspected of using drugs while in prison and, as a consequence, the prison governor ordered that all his visitors should be strip-searched.

The claimants reluctantly agreed.

The searches were not done in accordance with the prison's own rules; the claimants found the experience traumatic.

They commenced proceedings against the Home Office claiming that their right to privacy had been breached.

The judge found for the claimants on the ground that they had been subject to the tort of trespass to the person which had invaded their right to privacy.

The Court of Appeal [2001] EWCA Civ 2081; [2002] Gazette 28 February; [2002] QB 1334 overturned that decision.

The claimants appealed.

David Wilby QC, Ashley Serr and Iain Christie (instructed by Restons, York) for the claimants; Ian Burnett QC, Robin Tam and Anna Kotzeva (instructed by the Treasury Solicitor) for the Home Office.

Held, dismissing the appeals, that the English courts had so far refused to formulate a general tort of invasion of privacy; that the creation of such a tort would require a detailed approach that could only be achieved by legislation rather than the broad brush of common law principle; that there was nothing in the jurisprudence of the European Court of Human Rights to suggest that a high level principle of privacy was necessary to comply with article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms; and that, furthermore, the coming into force of the Human Rights Act 1998 weakened the argument for saying that a general tort of invasion of privacy was needed to fill gaps in existing remedies because sections 6 and 7 of that Act were in themselves substantial gap fillers.

(WLR)