Published: Wed, 07 Mar 2018
Wainwright v Home Office  2 AC 406
House of Lords declined to recognise tort of invasion of privacy in English law
The claimants were strip-searched for drugs on a prison visit. At trial, the judge found trespass against the person in relation to both claimants consisting of wilfully causing a person to do something to himself which infringed his privacy. The defendant appealed against the finding of trespass and was successful in the Court of Appeal.
In cases such as Kaye v Robertson  FSR 62, it was well established that there exists no tort of invasion of privacy in English law. An oft-cited stumbling block to the establishment of such a tort was the difficulty in clearly defining the concept of privacy. The claimants submitted that this was a case in which the House should find that the English common law recognises a remedy for an invasion of privacy. The claimants referred to various judgements of the European Court of Human Rights which suggested that English law does not provide a valid remedy in respect of Article 8 of the European Convention on Human Rights.
The appeal was dismissed. Lord Hoffmann recognised that the concept of privacy underpins the common law of breach of confidence which was significantly developed in Campbell v MGN Ltd  QB 633 but did not recognise a tort of invasion of privacy. The Court did not consider that there was anything in the jurisprudence of the European Court of Human Rights which required some high-level principle of privacy. Furthermore, this case was decided immediately prior to the Human Rights Act 1998 and the Court noted that the coming into force of that Act weakened the argument that a general tort of invasion of privacy at common law is needed to fill gaps in existing remedies.
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