Wainwright v Home Office

Alan Wainwright, with his mother, went to visit his stepbrother who was detained in Leeds prison awaiting trial. Because the stepbrother was suspected of taking drugs in jail, the two visitors were asked to consent to a strip search, under Rule 86(1) of the Prison Rules 1964 (consolidated 1998), which grants prison authorities a power to search any person entering a prison. They reluctantly consented and were searched by prison officers, which they found upsetting. In particular, Alan Wainwright was handled in a way that Home Office counsel subsequently conceded was battery.

The Wainwrights subsequently consulted a solicitor, who arranged for them to be examined by a psychiatrist. The psychiatrist concluded that Alan (who had physical and learning difficulties) had been so severely affected by his experience as to suffer post-traumatic stress syndrome. Mrs Wainwright had suffered emotional distress but no recognised psychiatric illness.

At Leeds County Court the judge held that the searches were wrongful (and hence not protected by statutory authority) because of the battery and invasion of the Wainwrights' "right to privacy", which he conceived to be a trespass to the person. He awarded Alan Wainwright £3,500 basic and £1,000 aggravated damages, and Mrs Wainwright £1,600 basic and £1,000 aggravated damages.

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 wrongful act. So they set aside the judgments in favour of the Wainwrights with the exception of the damages for battery, which they valued at £3,750.

The plaintiffs appealed to the House of Lords. Lord Hoffmann held that there was no tort for invasion of privacy, because (based on experience in the United States) it was too uncertain.[1] Moreover, a claim under Article 8 of the European Convention on Human Rights (ECHR), (right to privacy and family life), did not help because the ECHR was merely a standard which applied to whatever was currently present in the common law. Common law protection was sufficient privacy protection for the ECHR's purpose. The assertion that there may have been a breach of Article 3 (inhuman and degrading treatment) was completely unfounded.[2] He held that there was also no claim for a tort of intention to cause harm under the Wilkinson v Downton case.

In Lord Scott's opinion the way the strip searches were carried out had humiliated and caused distress to both Mrs Wainwright and to Alan, and was "calculated (in an objective sense)" to do so, even if this was not the intention of the prison officers. However, that was not tortious at common law, even if the humiliation and distress were intended.[3]

The appeal was dismissed unanimously by the law lords.

• Coleman, Jules; Mendlow, Gabriel. "Theories of Tort Law". In Zalta, Edward N. (ed.). The Stanford Encyclopedia of Philosophy (Fall 2010 ed.).