In light of the imminent Zeta-Jones & Douglas v Hello decision of the House of Lords in relation to the law of privacy (expected in January 2007), privacy has never been such a hot topic. The UK courts have yet to rule that there is a free-standing law of privacy. Will this recent European Court of Human Rights judgment influence the House of Lords and thereby advance the prospects for a free-standing law of privacy?
On 2 January 1997 Mrs Wainwright and her son Alan were strip-searched when they visited a relative in prison. The searches included a number of breaches of procedure including the touching of Alan’s genitalia by prison guards.
The Wainwrights complained to the ECHR that the strip-search infringed Article 3 of the Convention which provides that “No one shall be subject to torture or to inhuman or degrading treatment or punishment” and Article 8 which provides that “Everyone has the right to respect for his private life“. They also complained that they had no effective remedy in the national courts as provided by Article 13: “Everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The County Court found that the searches constituted a trespass to the person which could not be justified by the relevant Prison Rules, as the invasion of their privacy exceeded what was necessary and proportionate, and the prison authorities had not adhered to their own rules. The Court of Appeal and then the House of Lords disagreed that the tort of trespass to the person could be extended to fit these circumstances, and found that no wrongful act had been committed.
The Court of Appeal rejected arguments that the Human Rights Act 1998, which implements the Convention Articles and does not have retrospective effect, could affect the outcome of the appeal. It did, however, note that if the events had occurred after the coming into effect of the Act, the Wainwrights would have had a strong case for relief owing to the manner of the search and the public authority’s lack of regard for Article 8.
However, the House of Lords considered that had the Act been in force, there would have been no infringement of Article 3 as the conduct had not been sufficiently humiliating to constitute degrading treatment.
Their Lordships rejected the invitation to declare that since at the latest 1950 there has been a previously unknown tort of invasion of privacy, stating that “There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself. Nor is there anything in the jurisprudence of the ECHR which suggests that the adoption of some high level principle of privacy is necessary to comply with Article 8 of the Convention. The European Court is concerned only with whether English law provides an adequate remedy in a specific case… Furthermore, the coming into force of the Human Rights Act 1988 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in existing remedies.”
The House of Lords therefore concluded that the Wainwrights did not have a remedy under UK legislation, drawing a distinction between a negligent and an intentional invasion of privacy by this remarkable analogy: “it is one thing to wander carelessly into the wrong hotel bedroom and another to hide in the wardrobe to take photographs“. Their Lordships stated further that “a finding that there was a breach of Article 8 will only demonstrate that there was a gap in the English remedies for invasion of privacy which has since been filled by Sections 6 and 7 of the 1998 Act. It does not require that the courts should provide an alternative remedy which distorts the principles of the common law“. However, in light of various recent decisions which have developed common law principles the rejection of the appeal was a somewhat disappointing decision for the Wainwrights.
Did this mean that the Wainwrights do not have a remedy under the Convention in the European Court of Human Rights in Strasbourg?
The ECHR found that the treatment of the Wainwrights by the prison staff did not reach the minimum level of severity prohibited by Article 3. However, the ECHR found that there was no doubt that the requirement to submit to a strip-search will generally constitute an interference under Article 8 and will need to be justified as being “in accordance with the law” and “necessary in a democratic society“. The ECHR was not satisfied that the searches were proportionate to that legitimate aim in the manner in which they were carried out. Where procedures are laid down for the proper conduct of searches, it behoves the prison authorities strictly to comply with those safeguards and to protect the dignity of those being searched with rigorous precautions. The Court found that there had been a violation of Article 13 in that the House of Lords did not find any civil liability for the prison authority’s treatment of the Wainwrights, in particular as there was no general tort of privacy in the UK.
This ECHR decision has highlighted again the lack of a general tort of invasion of privacy in the UK. The UK courts have granted protection to confidential information and images, but as yet there is no adequate protection of the moral or human right to privacy in itself.
It is difficult to understand why the House of Lords did not either adopt the solution favoured by the County Court or deploy the burgeoning jurisdiction of the UK courts since the coming into force of the Human Rights Act – unless it was for policy reasons. It is difficult to avoid the conclusion that the House of Lords simply did not want to grant Mrs Wainwright and her son a remedy for fear of a flood of other such claims. The decision of the ECHR now risks having that effect – though it is difficult to disagree with it in granting the Wainwrights a remedy.