Exercising Visitation Rights
In a year of interesting and diverse cases, Wainwright v Home Office[1] stood out from the rest in terms of factual sensation and judicial entrenchment. Legally it provided an insight into English common law, the effect of European law, a response to what the Lords seemed to consider to be an almost frivolous argument, and a damages consideration. In analysing this case the factual details will be followed by the arguments advanced by the parties; this to be followed by the holding and how the case has been interpreted since the decision was handed down.
Facts
The facts are taken from the judgement of Lord Hoffmann[2]. The prison in question, Amley Prison, was governed by a Statutory Instrument regarding visitors exercising visitation rights with the inmates. Rule 86(1)[3] provided for limits on the extent to which the searches could be carried out.
In this case, Mary Wainwright and her son Alan Wainwright were visiting Patrick O'Neill, the son of the former and half-brother of the latter, who was awaiting trial for murder. The prison, which was in the process of a drugs investigation, exercised their right of search. They opted to undertake a strip search as they suspected drugs of being smuggled in to O'Neill. Lord Hoffmann wryly pointed out that the Statutory Instrument contains restraints as having to take off your clothes in front of a couple of prison officers is not to everyone's taste[4].
It was not disputed that the officers had failed to comply with the restrictions that they were under. The record emphasises that both were forced to appear fully naked, no consent forms were given until after the search, the room for Mrs Wainwright was not private, and Alan Wainwright had his genitalia touched[5].
As a result of these activities, Mary and Alan Wainwright were examined by a psychiatrist. The psychiatrist concluded that Alan was suffering from post-traumatic stress disorder, while Mary had suffered emotional distress without any recognised illness resulting. Both Alan and Mary filed a claim against the Home Office in 1999.
PROCEDURAL ISSUES
One of the unique features of this case was that it involved a range of procedural issues. Unsurprisingly they were all dealt with by the claimants satisfactorily, although they almost fell at the first hurdle. Because the incident had taken place on the 2nd January 1997 the statute of limitations would expire on the 2nd January 2000[6]. The claim was issued on the 23rd December 1999.
Further, because Alan was deemed to be a 'patient' within the meaning of the Civil Procedure Rules, it was necessary for him to be represented by a 'litigation friend' who would be capable of making decisions on his behalf. In the instant case it was his fellow Claimant, Mary Wainwright who undertook the duty[7].
The final procedural point is that at the time of the incident (1997) the Human Rights Act[8] was not in force in England and Wales. This was one of the points addressed by the Lords.
ARGUMENTS
Claimants
The Claimants[9] crucial argument was that the court should find that a right of privacy exists. Two theories were argued in the alternative; firstly that the common law has developed to a point where a right to privacy is a natural extension, secondly that a narrower decision could be reached by extending the tort of intentionally causing harm, established in Wilkinson v Downton[10].
To support the first limb of argument, the appellants relied on The Right to Privacy[11], a 19th century article written by the two significant legal intellects, Samuel Warren and Louis Brandeis[12]. In this article, which had been the forerunner of an American right to privacy, Warren and Brandeis argued that the right to privacy was the next step in the evolution of the common law. The appellants invited the Lords to invoke their powers to overrule the decision of Kaye v Robertson[13] which had been binding on the Court of Appeal.
This argument was entwined with the argument that the right to privacy was now requested and required by the Human Rights Act and that while at the time of the incident it was not applicable, the principles of Article 8[14] should be used as a basis for a favourable decision. In support of this argument the appellants cited Peck v United Kingdom[15] when it was determined that the failure to provide a right of privacy had violated Article 8 of the Human Rights Act[16]
The second argument forwarded was that Wilkinson[17] could be extended to protect a limited aspect of privacy. This was not dealt with at any length in the record, the support merely being demonstrated by two cases that have relied on the authority[18]. It is therefore likely that this was an attempt by the appellants to give the court an opportunity to find for the injured party without bequeathing a full blooded right to privacy with all the problems that would be feared.
The final argument was that the search violated Article 3 of the Human Rights Act. This protects an individual from degrading treatment. The appellant's arguments focused on Alan Wainwright, because of the physical contact, and contended that the cumulative conduct was sufficiently humiliating to constitute degrading treatment. It is interesting that the appellants made few if any references to comparative decisions by the European Court, preferring to focus their arguments on the Article 8 issues that were discussed above.
Respondents
The respondent's[19] arguments are slim from the appearance of the record. The opening riposte was one of exaggeration to emphasise to the Lords the drastic step that was being sought by the appellants. This was achieved by noting the many leaps that were being suggested, including applying a horizontal effect of the Act to common law; a notion that was/is controversial at the least.
The fundamental argument was constantly re-iterated: at no time has English law recognised an omnibus right to privacy[20]. Importantly, the appellees also emphasised that this would be an inappropriate case to re-consider the question. This is likely due to a concern that one of the more liberal Lords would be assigned to the case[21] and would be tempted to use it as a vehicle for creativity rather than interpretation. To bolster this caution, the appellee's relied on a statement by Sir Robert Megarry VC in Malone v Metropolitan Police Comr[22] where the Vice Chancellor warned of the dangers of judicial law-making.
The Wilkinson[23] argument was rebutted with a lecture on the history of the law of negligence and a submission that it had been determined because of the limitations of negligence at the time; limitations that had since been cured.
HOLDING
Lower courts
The judge at first instance was McGonigal J sitting at Leeds County Court who ruled that the searches were an improper use of the powers vested under Rule 86(1). This was supported by a finding that it was an invasion of privacy and that the prison officers had failed to adhere to their own rules[24]. The damages awards were 2,600 and 4,500 for Mary Wainwright and Alan Wainwright respectively.
Lord Woolf CJ addressed the matter on appeal[25]. Of crucial significance for the Wainwright's he agreed that there had been a violation of the rules and that there was a cause of action in battery. The Chief Justice disagreed that there had been an invasion of privacy, chiefly because no such right is recognised in English law. This was crucial because there had only been one instance of battery, against Alan, and regardless of how reprehensible the conduct, there was no appropriate cause of action in privacy. As a result, the damage awards were cut as regards Mary Wainwright, and limited to 3,750.
The House of Lords
Following the actions of the Appellate Court in applying a machete to the damages, it is unsurprising that the Wainwright's appealed with permission of the Court of Appeal[26] to the House of Lords. The 5 strong court was unanimous in rejecting the appeal and affirming the judgement of Lord Woolf CJ. Of the 5 law lords, Lord Hoffmann wrote the crucial judgement with Lord Bingham[27], Lord Hope[28] and Lord Hutton all concurring without additional opinion. Lord Scott[29] wrote a brief opinion concurring in the result and reasoning but challenging the quantum of damages.
Lord Hoffmann
Lord Hoffmann opened by disposing of the uncontested issue of battery. The court of fact had determined this and there had been a battery against Alan Wainwright as regards the touching of his genitalia.
Lord Hoffmann's discussion of the alleged right to privacy emphasised five points in denying the existence of a right to privacy. The first point was a response to the reliance on the Warren and Brandeis article, with Lord Hoffmann emphasising the American rather than English development and continuing that in fact the developments had proved that it was impossible to define a general right to privacy. The recourse to a four limb approach[30] was proof that it was impossible to define and utilise a right to privacy.
Lord Hoffmann further added a nail in the coffin of the right to privacy by positively affirming the Kaye[31] authority. While not altering the status quo, this further entrenches the authority and makes future overruling endeavours less likely to succeed. Indeed he added his own opinion:
All three judgements are flat against a judicial power to declare the existence of a high-level right to privacy and I do not think that they suggest that the courts should do so[32]
This display of judicial restraint was supported by the reference to the Calcutt Committee who had called the development of such a right indicative of an unacceptable degree of uncertainty[33].
The appellant's reliance on the Douglas v Hello! Ltd[34] judgement was also rejected as irrelevant as Sedley LJ had merely advocated an extension of the breach of confidence cause of action rather than a new right of privacy.
In response to arguably the appellant's strongest argument, Lord Hoffmann faced the applicability of the Human Rights Act with ease. While it had not been adopted by the legislature in 1997, the court was prepared to examine the subsequent case law in order to assist the Lords in giving effect to the principles of the Human Rights Act[35].
On a substantive level, Lord Hoffmann chose to focus on the rulings of the European Court that have adopted a narrow rather than a broad approach. While acknowledging that Article 8(1) does provide the right to a respect for private life the European Court has refused to draw broad conclusions from individual questions. Support was drawn from Peck v United Kingdom[36] where the court refused to speculate past the individual question as to whether English law provided an appropriate remedy for Pecks particular case. Lord Hoffmann used this reasoning to deny that any previous European decisions had declared, expressly or by implication, that English law had been force fed a right of privacy.
Dealing with the appellants arguments for extending Wilkinson[37] Lord Hoffmann was unimpressed. The crux of the response, which took up a mere five paragraphs of the opinion, was that the tort of intention was no longer necessary having been subsumed by the extension of negligence since Janvier v Sweeney[38]. Indeed the final line left counsel in do doubt as to the strength of his feelings by stating that leaves Wilkinson v Downton with no leading role in the modern law[39]
Finally responding to the Article 3 claim by the appellants which deals with degrading treatment, Lord Hoffmann was even more dismissive emphasising that:
the conduct of the searches came nowhere near the degree of humiliation which has been held by the European Court of Human Rights to be degrading treatment[40]
In short, Lord Hoffmann writing for all 5 law lords on the substantive law held that there was no right to privacy and that the appeal would be dismissed.
Lord Scott of Foscote
Lord Scott concurred entirely with Lord Hoffman's judgement. He wrote merely to question the Court of Appeals decision to reduce the quantum award by 750. As a basis for this, Lord Scott referred to the method of calculation and professed surprise at the parity of actual damages between Alan and Mary in spite of the additional humiliation suffered by Alan. Lord Scott added that had the appellants chosen to address an argument on this point he would have been receptive to such an argument. Because this point was moot, the concurring opinion is obiter dicta and as such needs no more discussion.
ANALYSIS
The judgement is significant in three ways. On a narrow and specific reading it is of course of great interest to the Wainwright's who care little about the development of a right to privacy, but care greatly about the reduction in damages, in Mary Wainwright's case a complete reduction. The decision is clear in that the reduction is upheld by the court.
Expanding the focus to the quest for a general right to privacy, it appears that the appeal is more concerned with this goal than as an endeavour to re-instate the damages award. The surprising absence of a third argument to simply rule that Lord Woolf mistakenly reduced the damages award by 750 would at least have led to a victory for Alan Wainwright, though it would have been a pyrrhic victory for those hoping for a right to privacy.
The effect of the case is one of clarification. By rejecting all of the various arguments that were forwarded by the appellants, Lord Hoffmann left potential claimants in no doubt as to the stance of the highest court in England and Wales on the question of a right to privacy.
A third point of interest is the treatment of the Human Rights Act. Because the facts took place before the Act was passed it is arguable that little should be read into the decision, yet it does give an insight into the courts reaction to their loss of supremacy with the European Court. Lord Hoffmann's approach was significant insofar as his judgement applauded the narrow approach of the European Court by limiting their findings to individual cases. Under this judicial approach the Lords can still claim supremacy over the vast majority of English law as the European Court has a limited docket each year and only a minority of the cases granted cert are appeals from England and Wales.
Finally, while the five law lords appeared to uniformly agree with the reasoning that was supplied by Lord Hoffmann, the writing of Lord Scott gives rise to potential speculation. In the concurring opinion Lord Scott drew a clear distinction between Mary Wainwright and Alan Wainwright. Though he used this in the context of damages, there could be a possibility that his Lordship was demonstrating sympathy with the notion of intentional distress; a notion that was rejected by Lord Hoffmann in disposing of the Wilkinson argument[41].
CONCLUSION
The Wainwright decision is an interesting example of various points of a case before the House of Lords, procedurally and substantively. Its legacy though[42] will be the House of Lords further entrenchment of the principle that there is no right to privacy in England and Wales.
BIBLIOGRAPHY
Clayton R/Tomlinson H 'Privacy and Freedom of Expression'
Published by Oxford University Press, 2001
Matrix Chambers 'Privacy and the Media, The Developing Law'
Published by Matrix Media and Information Group, 2002
Rozenberg J 'Privacy and the Press'
Published by Oxford University Press, 2004
Warren S/Brandeis L 'The Right to Privacy' (1890) 4 Harvard LR 193
Calcutt Committee Report (1990) (Cm 1102)
Burnett v George [1992] 1 FLR 525
Douglas v Hello! Ltd [1990] QB 967
Home Office v Wainwright [2002] QB 1334
Janvier v Sweeney [1919] 2 KB 316
Kaye v Robertson [1991] FSR 62
Khorasandjian v Bush [1993] QB 727
Malone v Metropolitan Police Comr [1979] CH 344
Peck v United Kingdom (2003) 36 EHRR 41
Wainwright v Home Office [2004] 2 AC 406
Wilkinson v Downton [1897] 2 QB 57
[1] [2004] 2 AC 406
[2] ibid at 417
[3] The Prison Rules (Statutory Instrument 1964/388) (consolidated 1998)
[4] ibid n2
[5] ibid n1 at 418. Rule 86(1) requires that the room be private, that only half the body be exposed at any time, that no intimate search can take place, and that the consent form be signed before the examination.
[6] Because the claim was one of personal injury, the limitation period under the Civil Procedure Rules is 3 years.
[7] ibid n1 at 408
[8] Human Rights Act (1998)
[9] Hereafter the appellants
[10] [1897] 2 QB 57
[11] (1890) 4 Harvard LR 193
[12] Brandeis eventually became Justice Brandeis; one of the most significant US Supreme Court justices in history.
[13] [1991] FSR 62
[14] The right to respect for an individuals private life.
[15] (2003) 36 EHRR 41
[16] By definition this violated Article 13 which requires that an appropriate remedy be available.
[17] Ibid n 10
[18] Janvier v Sweeney [1919] 2 KB 316, Burnett v George [1992] 1 FLR 525, Khorasandjian v Bush [1993] QB 727
[19] Hereafter the appellees
[20] ibid n1 at 412
[21] Lord Phillips for example
[22] [1979] CH 344 at 372
[23] ibid n10
[24] The breaches were detailed above at n5.
[25] [2002] QB 1334
[26] Pursuant to the Civil Procedure Rules
[27] Lord Bingham of Cornhill
[28] Lord Hope of Craighead
[29] Lord Scott of Foscote
[30] Prosser 'The Law of Torts' at 804
[31] ibid n13
[32] ibid n1 at 422
[33] Calcutt Committee Report (1990) (Cm 1102)
[34] [2001] QB 967
[35] Bearing in mind the eventual result of the analysis, it I clear that the court had no hesitation in facing the arguments in the knowledge that not only could they be countered but that there was an opportunity of setting out the position of the Lords regarding the supremacy question.
[36] ibid n15
[37] ibid n10
[38] [1919] 2 KB 316
[39] ibid n10
[40] ibid n1 at 427
[41] ibid n10
[42] This legacy has already become significant with any argument that Kaye v Robertson should be overruled being met by the firm statement that it has been approved in Wainwright. Added to the clear reasoning of Lord Hoffmann it certainly provides a major obstacle in the quest for an enumerated right to privacy.
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