Wainwright v Home Office [2004] 2 AC 406

Facts

• The claimants were subjected to strip searches for drugs during a visit to a prison.
• A trial judge found there had been trespass to the person by prison staff who had wilfully caused the claimants to perform actions infringing their privacy.
• The Court of Appeal overturned the finding of trespass, leading to an appeal to the House of Lords.
• The primary argument on appeal was that their privacy rights had been violated and that this required the recognition of a new tort of invasion of privacy.
• The case was brought before the Human Rights Act 1998 came into force, and arguments referenced the lack of an adequate domestic remedy under Article 8 of the ECHR.

Issues

1. Whether English common law should recognize a general tort of invasion of privacy.
2. Whether existing torts, such as trespass to the person, could sufficiently protect privacy interests.
3. Whether ECtHR jurisprudence and Article 8 of the ECHR required domestic courts to establish a broader legal remedy for privacy violations.
4. Whether the impending implementation of the Human Rights Act 1998 affected the need for common law development in this area.

Decision

• The House of Lords dismissed the appeal and declined to recognize a tort of invasion of privacy in English law.
• The court held that existing legal mechanisms, such as breach of confidence and trespass to the person, were sufficient to address privacy-related complaints in the present case.
• The Lords acknowledged the development of privacy rights through breach of confidence (relying on cases like Campbell v MGN Ltd) but refused to extend this to a general tort.
• The court found no requirement in ECtHR jurisprudence to create a general principle of privacy in domestic law.
• The forthcoming Human Rights Act 1998 was noted as providing an adequate mechanism for redress of privacy claims, diminishing the argument for judicial creation of a new tort.

Legal Principles

• English common law does not recognize a standalone tort of invasion of privacy.
• Judicial development of new common law torts is limited, especially where Parliament is addressing the issue through legislation.
• Remedies for privacy violations should be found within established causes of action unless legislation provides otherwise.
• The Human Rights Act 1998 incorporates the ECHR and provides a statutory basis for privacy rights, reducing the need for common law innovation in this area.
• There is a reluctance within English courts to create new causes of action where this may overlap or conflict with legislative frameworks.

Conclusion

The decision in Wainwright v Home Office confirmed that English law, at the time, did not recognize a general tort of invasion of privacy and emphasized reliance on existing common law remedies and forthcoming statutory protections under the Human Rights Act 1998. This judgment clarified the limits of judicial activism and reinforced the principle that substantive legal reform is the role of Parliament.