Case No: B3/2001/1008
 
Neutral Citation Number: [2001] EWCA Civ 2081
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LEEDS COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Thursday 20 December 2001

B e f o r e :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
LORD JUSTICE MUMMERY
and 
LORD JUSTICE BUXTON
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	The Home Office	Appellant	
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	Mary Jane Wainwright
Alan Joseph Wainwright
	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
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Mr Robin Tam & Mr K Morton (for judgment) (instructed by Treasury Solicitor appeared for the Appellant)
Mr David Wilby QC & Mr Ashley Serr (instructed by David A Reston, York appeared for the Respondent)

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JUDGMENT

(As Approved by the Court)

Lord Woolf CJ: 
1.	 This appeal relates to a judgment of HH Judge McGonigal, given at the Leeds County Court on 23 April 2001. The claimants were a mother, Mrs Mary Wainwright, and her son, Alan Wainwright. The judge awarded basic and aggravated damages which were, in total, for the mother the sum of £2,600 and for the son the sum of £4,500. The damages were compensation for the manner in which they were strip-searched by prison officers when they went to Armley prison, Leeds in order to visit another son (Patrick O’Neill) of Mrs Wainwright.
2.	The case raises difficult issues of law and the judge gave leave to appeal. The most important of those issues are identified by Mr Tam for the appellant, the Home Office, as being whether a person is liable in tort if he:
i)	wilfully causes a person to do something calculated to cause harm to him, namely to infringe his legal right to personal safety;
ii)	wilfully causes a person to do something to himself which infringes his right of privacy?
3.	Additional issues were:
i)	if such conduct was tortious, whether, on the facts of this case (a) it was negatived by consent or (b) protected by statutory authority; 
ii)	whether the complainants were entitled to rely on s.3 of the Human Rights Act 1998 notwithstanding that the conduct complained of occurred on 2 January 1997, before the Human Rights Act came into force.
4.	HH Judge McGonigal gave a detailed and clear judgment both as to his findings of fact and the legal principles which he applied in this difficult case. It is therefore possible to rely on the judgment in order to explain the factual background and the issues.
FACTUAL BACKGROUND
5.	At the time of the visit Alan Wainwright was 21 years of age. He suffers from cerebral palsy with a degree of mental impairment. He therefore sues as a patient by Mrs Wainwright, his litigation friend. 
6.	On the 2 January 1997 Mrs Wainwright and Alan arrived at the prison at about 6pm. They went through normal security checks and then waited with the other visitors prior to seeing Patrick. They were then approached by a number of prison officers and asked to accompany them. They then proceeded to the north gatehouse of the prison. On the way there, they were told they were to be strip-searched because they were suspected of bringing drugs in to the prison and if they refused they might be denied a visit to Patrick. At the gatehouse they were taken up to the first floor where they were separated. 
7.	Mrs Wainwright was strip-searched by two female prison officers in one room while Alan was searched by two male prison officers in another room. They were then allowed to visit Patrick. 
8.	Before a strip-search takes place, the person who is to be strip-searched is required to sign a consent form. There is no dispute that both claimants signed the form which is known as F2141. There was a dispute as to when they signed the form. The form reads as follows:
“Notice for the information of visitors or other persons entering an establishment
Strip-search
Please read carefully
The Governor has directed that, for the reasons explained to you, you should be strip-searched.
The police have been informed but cannot come to deal with the matter. The search will therefore be carried out by prison staff.
The procedure for the search is explained overleaf.
Please sign below if the search is taking place with your consent.
I have read this notice (or it has been read to me) and I understand it.
I agree to be strip-searched by prison staff.”
9.	The prison officers who gave evidence said that the forms would have been signed prior to the search being undertaken in accordance with proper practice. Mrs Wainwright and Alan both said that they were asked to sign the forms after the search had been substantially completed. The judge preferred their evidence on this issue. He regarded Mrs Wainwright “as an honest witness who was doing her best to tell the truth as she remembered it”. He felt the circumstances surrounding Alan’s search supported his story.
10.	The search was conducted at a time when it was dark outside and Mrs Wainwright believed that she could be seen by those who were in a single storey flat roofed administration block which was on the opposite side of the road or from that road. There were roller blinds on the windows of the room that she was in but the judge accepted her evidence that the blinds were not pulled down. Mrs Wainwright does not allege that she was touched by either of the female officers who searched her, but says that she felt threatened and that she was upset and worried. Alan said (and this the judge accepted) that during his search he was naked, a finger was poked into his armpits and that one prison officer went all round his body, lifted up his penis and pulled back the foreskin. The judge also found that Mrs Wainwright was correct in saying that there was a point when she was naked apart from knickers around her ankle and a vest held above her breasts. The judge also accepted that the officers had not known of Alan’s learning difficulties before they had completed the strip-search of him-see paragraph 56 of his judgment. Paragraph 10 as currently drafted might, through ambiguity, give the erroneous impression that they were aware throughout the search procedure of Alan’s learning difficulties.  We would respectfully ask that consideration be given to clarifying this point. Mrs Wainwright describes how she was crying during the search and there is no doubt that she and Alan were very upset by what happened.
11.	The judge also made the following relevant findings of fact:
i)	there was a pressing problem involving the prevalence of illicit drugs within the prison;
ii)	visitors in general were a major source of such drugs and that all visitors were suspected of bringing in drugs until it was proved otherwise because all sorts of unlikely visitors had been known to bring in drugs;
iii)	there were reasonable grounds for believing that Mrs Wainwright’s son, Patrick, had been obtaining illicit drugs.
iv)	the claimants each consented to being strip-searched before they were searched although in each case they signed the consent forms after the search was complete or substantially complete; 
v)	the search of each of the complaints was not conducted in as seemly a manner as was consistent with discovering anything concealed;
vi)	the officers honestly believed that they had a legal right to strip-search the claimants;
vii)	Mrs Wainwright understood and was intended to understand that the officers had a legal right to strip-search the claimants;
viii)	notwithstanding that each claimant consented to the strip-search, such consent was not a real consent because they were expressly told that if they did not consent the defendant would deny the claimants the proposed visit;
ix)	further, such consent was not a real consent because it was represented to them that the officers had a legal right to strip-search them, which was untrue, although honestly believed;
x)	any search under a power given by rule 86 of the Prison Rules 1964 was lawful only if it was conducted in as seemly a manner as was consistent with discovering anything concealed;
xi)	the strip-search of the claimants was not a proportionate response to the objective of preventing that person from obtaining drugs from visitors and was therefore not permitted by that rule;
xii)   the prison officers had no right to conduct a search.
12.	The judge on these findings came to the conclusion that a tort of trespass to the person, consisting of wilfully causing a person to do something to himself which infringes his right to privacy had been committed against both claimants. In addition he concluded that the tort of trespass to the person, consisting of wilfully causing a person to do something calculated to cause harm to him, namely infringing his legal right to personal safety, had been committed against the second claimant. 
13.	There is no dispute now that the Home Office is liable to Alan for the physical handling which took place and that this amounted to battery. Nothing was found during the course of the searches.
14.	As to injuries, the findings of the judge are not so clear.  It appears that he accepted in the case of Mrs Wainwright there was exacerbation of existing depression and unpleasant memories of the incident.  In the case of Alan, it appears that the judge found that he was suffering from post-traumatic stress disorder. 
15.	Both claimants sought exemplary and aggravated damages.  The judge did not consider that it was an appropriate case for exemplary damages.  He considered that it was an appropriate case in which to award aggravated damages.  As aggravated damages, he awarded each claimant £1000.
THE STATUTORY AUTHORITY TO CONDUCT SEARCHES
16.	The Prison Rules 1964 are made pursuant to s.47 of the Prison Act 1952. The parties accept that these rules applied to the search. The rule which is directly applicable is rule 86(1). This rule provides:
i)	Any person or vehicle entering or leaving a prison may be stopped, examined and searched.
17.	The very general terms of rule 86 have to be contrasted with the terms of rule 39(1) which applies to prisoners. This states:
i)	Every prisoner shall be searched when taken into custody by an officer on his reception into a prison and subsequently as the Governor thinks necessary or as the Secretary of State may direct.
ii)	A prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed.
iii)	No person shall be stripped and searched in sight of another prisoner, or in the sight or presence of an officer not of the same sex.
18.	Leeds prison has its own strategy and procedure relating to searches. Part of the Strategy applies to visitors to prisons. The following statements  are important:
•	Paragraph 1.2.1 - Searches will be conducted in as seemly and sensitive manner as is consistent with discovering anything concealed.
•	No person will be strip-searched in the sight of anyone not directly involved in the search.
•	A person who refuses to be searched will be denied access to the prison or detained in accordance with s.1.2.7.
•	Paragraph 1.2.5 - Strip-searching of visitors is not permitted except in the circumstances specified in 1.2.7 and then only if police attendance is not possible. In cases where strip-searches of visitors are necessary it is preferable that this is done by the police.
•	Paragraph 1.2.6 - A visitor who refuses to cooperate with the search procedures will be advised that the failure to comply will result in exclusion from the prison.
•	Paragraph 1.2.7 – If the duty governor sanctions a strip-search, the visitor should be taken to a room which is completely private and informed of the general nature of the suspected article.
19.	After the conclusion of the oral argument our attention was drawn to two recent decisions.  At our invitation the parties submitted further written submissions on those decisions.
The Human Rights Act Issue
20.	It is convenient to take this issue first. It relates to the judge’s finding that the Home Office was under a liability to Mrs Wainwright based on the infringement of her right to privacy, notwithstanding that she suffered no physical injury, but only distress and humiliation.. The existence of such a right at common law has never been clearly established but the judge found that she was entitled to the protection of such a right, basing his conclusion in part on the judgment of Sedley LJ in Douglas and Others v Hello! Ltd [2001] QB 967 that such a right could exist at common law and in part on the Human Rights Act 1998. However, as the judge recognised, in that case the acts complained of occurred after the Human Rights Act had come into force on the 2nd October 2000, (Sedley LJ in his most instructive judgment was dealing with the question “Is there today a right to privacy in English Law?” [paragraph 109 emphasis added], while here the matters of complaint occurred prior to that date.
21.	On this appeal Mr Wilby relies on the Human Rights Act for a different purpose, namely to qualify the interpretation of Prison Rule 86 so that it accords with Article 8.  
22.	There has been considerable uncertainty as to whether the Human Rights Act can apply retrospectively in situations where the conduct complained of occurred before the Act came into force. The position was considered by the House of Lords in R v Lambert [2001] 3 WLR 206. After the hearing of this appeal the decision was given by the House of Lords in R v Kansal [2001] UKHL 62. In Kansal the actual decision in Lambert was subject to considerable criticism but because Lambert had only been recently decided and the decision only concerned a transitional situation the case of Lambert was not overruled. 
23.	Mr Wilby QC, on behalf of the claimants, concedes that Lambert made clear that convictions by courts before the Act had come into force cannot be impugned after the Act came into force on the grounds that the court acted in a way which would be incompatible with convention rights. He therefore accepts, for example, that the Court of Appeal could not on an appeal coming before it after the 2 October 2000 differ from a decision of the Employment Appeal Tribunal prior to the Act coming into force as to the construction of the Sex Discrimination Act 1975, if the construction of the Employment Appeal Tribunal would have been regarded as correct before the Human Rights Act came into force. Pearce v Governing Body of Mayfield Secondary School [2001] IRLR 669 was cited in support of this concession. 
24.	However, Mr Wilby argues that this does not apply to s.3 of the Act. Section 3(1) provides:
i)	So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
ii)	This section applies to primary legislation and subordinate legislation whenever enacted.
25.	It is not necessary to refer to s.3(2) as Mr Wilby does not rely on s.3(2) to support his contention. He accepts the only relevance of that subsection is to make it clear that once s.3 is in force it applies to legislation prior to the Act coming into force.
26.	 Mr Wilby says looking at the language of s. 3(1), it is clear from its unqualified wording that once the Act was in force the judge and this Court are obliged to comply with s.3(1). Mr Wilby stresses that there has been no case in which there is a judgment which is inconsistent with his submissions that once the Act is in force a court is required to give effect to s. 3(1) even though matters complained of (as here) took place before the Act came into force. He submits to do so does not involve giving retrospective effect to s.3 as long as the court, as here, is trying the case after the Act is in force. 
27.	Lambert and Kansal do not directly decide this point. They did not concern s.3. In those cases, unlike the position here, the decision under appeal was given before the Act came into force. In addition there was no appeal by a public authority as there is here by the Home Office. However the decision in both cases is consistent with the general presumption that legislation should not be treated as changing the substantive law in relation to events taking place prior to legislation coming into force. But the whole purpose of this part of the claimants’ argument is to rely on s.3 to assist in establishing a liability on the Home Office for causing humiliation and distress where without s.3 it would not exist. This is therefore an attempt by Mr Wilby to rely on s.3 to achieve an interpretation of Rule 86 which is then to be applied retrospectively to a situation when the Act was not in force. 
28.	Of course, legislation can expressly provide that it is to apply retrospectively and if it does so the legislation is retrospective in accordance with the terms of the legislation. This is the position with regard to s.22 (4) of the Human Rights Act. Section 22(4) provides:                   
“(i) Paragraph (b) subsection (1) of section 7 applies to proceedings brought by or at the instigation of a public authority whenever the Act in question took place; but otherwise that subsection does not apply to an Act taking place before the coming into force of that section.”
29.	Section 22 (4) has no application to s.3. However, this does not mean that s.22 (4) is not relevant. On the contrary, it is highly significant since it demonstrates that when Parliament wanted the Act to operate retrospectively it says so.
30.	The speeches in Lambert  as to the general approach to the Human Rights Act commence with that of Lord Slynn  at paragraph 6: 
“6. It is clear that the 1998 Act must be given its full import and that long or well entrenched ideas may have to be put aside, sacred cows culled. Since, however, the Act did not come into force (apart from limited provisions) until the Secretary of State had appointed a day or days for the act or parts of it to come into force, and since there is a presumption against retrospectivity in legislation, it is not to be assumed a priori that Convention rights, however commendable, are to be enforceable in national courts in respect of past events. The question is whether the Act has provided for rights to be enforceable in respect of such past events or more precisely whether a court reviewing the legality of a direction to a jury at a criminal trial given before the Act came into force, which was in accordance with the law at the time, has to be judged by the standards of the Convention.”
31.	Lord Slynn was concerned to look at the reality of the situation, as I would suggest we must do here, in order to see whether we are being asked to apply the Act retrospectively. Lord Slynn’s approach is indicated in this passage from his speech;
“12. Moreover, even if there is a basis for the contention that the appellant’s argument based on sections 7 and 22 do not involve retrospectivity, it seems to me that the obvious effect of section 6 as interpreted by the appellant is to impose on the House the current duty of quashing retrospectively a conviction which was good as the law stood at the time.”
32.	The speech of Lord Hope is also relevant. In paragraph 115 Lord Hope says;
“There is nothing in the 1998 Act to indicate that that subsection [3(1)] is to be applied retrospectively to acts of courts or tribunals which took place before the coming into force of s.3 (1).”
33.	Furthermore Lord Hope cited what the Vice Chancellor, Sir Andrew Morritt had said in Wilson v First County Trust Ltd (No.2) (Case no. B2/1999/1073) [ 2001] 3 W. L. R.  42 and then goes on to say;
“I agree with the Vice Chancellor that the answer to this argument is to be found in s.22 (4). Parliament made its choice as to the extent to which the 1998 Act should have affect retrospectively. It did so by expressing it in an enactment, and in my opinion no other reading of s.22 (4) than that which I have indicated is possible.”  
34.	What had been said by Sir Andrew Morritt is; 
 "The effect of section 22 (4) is not in doubt.  It provides (by the second limb of the section) that, in general, section 7 (1) does not apply to an act taking place before the 2nd October 2000.  So, for example, a person who claims that the public authority has acted in a way which is incompatible with the Convention rights (contrary to section 6 (1) of the 1998 Act) cannot bring proceedings against the authority under the 1998 Act (pursuant to section 7 (1) (a)) if the unlawful act took place before 2nd October 2000."
35.	Lord Clyde also dealt with the issue but his approach is neutral so far as the present issue is concerned. At paragraph 142 of his judgment  he said:
“In my view s.3, only became obligatory on courts on 2 October 2000. The rule of construction which it expresses applies to all legislation whenever enacted.”
36.	However later at paragraph 143 Lord Clyde indicates his general approach when he adds:
“In general Acts of Parliament should not be read as operating so as to affect things done prior to their coming into effect. I see no reason why that principle should not apply to the Human Rights Act 1998. If a departure from the usual course was intended I would expect that to have been clearly stated.”
37.	In Kansal Lord Hope again refers expressly to s.3 after referring to my judgment in Benjafield [2001] 3 WLR 75, 92. At paragraph 48 he states;
“In my opinion however the usual presumption that statutes are not intended to be retrospective applies to section 3(1)”      
38.	And at the end of paragraph 84 he adds;
“So I would not extend retrospectivity to section 3(1), in the absence of an express provision to that effect”.
39.	In their additional written submissions, counsel on behalf of Mrs Wainwright and Alan submit Lambert should be given a very narrow application and confined to its facts.  However, the major part of the criticism of the decision in Lambert relates to the artificial distinction which was drawn between proceedings involving the trial and the appeal.  This distinction has no relevance to the present appeal.  The point is also made that not to apply the Human Rights Act to what happened to the claimants, will only result in their having to take proceedings in the European Court so as to obtain an effective remedy. This contention would have more force if the claimants were not seeking to rely on the Convention to change English substantive law.  Where this is what is in issue it is by no means clear that the European Court of Human Rights will provide a remedy when our courts do not do so.	
40.	I would reject Mr Wilby’s argument that the Human Rights Act can affect the outcome of this appeal. It certainly cannot be relied on to change substantive law by introducing a retrospective right to privacy which did not exist at common law. The European Convention of Human Rights, contrary to the conclusion of the judge, is only relevant here as background against which the appeal is to be decided. This undermines one of the foundations for the judge’s conclusions that the claimants were entitled to succeed on an extended form of trespass designed to protect the privacy of the individual.
Wilkinson v Downton
41.	The other prop on which the judge relied to find that there was an extended tort of trespass containing the ingredients to which I have referred, is the judgment of Wright J in Wilkinson v Downton [1897] 2 QB 57. The facts of Wilkinson v Downton are different from those here. The case involved a practical joke by the defendant. He falsely represented to the claimant, a married woman, that her husband had met with a serious accident in which his legs had been broken. The defendant made the statement with intent that it should be believed to be true. The plaintiff believed it to be true and in consequence suffered a violent nervous shock which rendered her ill. Why reliance is placed on this decision by the claimants is because at the time of the decision Victorian Railway Commissioners v Coultas [1888] 13App Cas 222, as was acknowledged, would have made it difficult, if not impossible, to recover damages for “illness which was the effect of shock caused by fright”. Such injury was regarded as being too remote in an action for negligence. 
42.	Wright J decided for the claimant and in doing so set out as “the real ground” of action as being that “a person who makes a false statement intended to be acted on must make good the damage naturally resulting from it being acted on”. Of this he said;
“The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”
43.	And later Wright J added;
“It remains to consider whether the assumptions involved in the proposition are made out. One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs. The other question is whether the effect was, to use the ordinary phrase, too remote to be in law regarded as a consequence for which the defendant is answerable.”
44.	To understand the approach of Wright J it is important to note the emphasis which Wright J places on the act being “wilfully done”. For this to be the position, the act has to be either one which is done with the intention of causing harm or done in circumstances where it was so likely that the harm would be incurred that an intention to produce harm has to be imputed. Certainly nothing less than recklessness would do.
45.	Until the very recent decision of this Court in Minna Wong v Parkside Health NHS Trust and another [2001] EWCA Civ 1721 (16th November 2001), Wilkinson v Downton had not been considered extensively. Wright J’s judgment was approved in Janvier v Sweeney and another [1919] 2 KB 316. In Janvier there was an actual intention to terrify the plaintiff for the purpose of obtaining an unlawful object in which both the defendants were jointly concerned. Wilkinson v Downton was more recently relied on in this court in Burnett v George [1992] 1 FLR 525. However, that was a case involving the jurisdiction to grant an injunction and is not of any real assistance in determining the ambit or the validity of the principle enunciated by Wright J.
46.	Our attention was drawn by Mr Wilby to “Tort Liability for Psychiatric Damage” by Nicholas Mullany and Dr Peter Handford. In chapter 14 of that book Wilkinson v Downton is considered in some detail. It points out that Wilkinson v Downton has been followed in a number of commonwealth jurisdictions and in the United States. In that jurisdiction the approach is confined by the need for the conduct to be “extreme and outrageous conduct” (see page 299). The editors consider that the argument for the Wilkinson v Downton action, being distinct from the tort of negligence, is that cases based on this principle do involve the intentional or reckless causing of shock “in that the defendant intends to cause or is reckless as to, the immediate consequences – fright or horror – and that the physical harm which results can be regarded as intended or likely, rather than as merely foreseeable” (see page 290).
47.	In Minna Wong the judgment of the court was given by Lady Justice Hale.  She considered the "tort" created by Wilkinson v Downton.  She did not doubt that there was a tort commonly labelled "intentional infliction of harm".  She rejected the suggestion that the tort would be committed if there was deliberate conduct which "foreseeably led to alarm or distress falling short of the recognised psychiatric illness which is now considered the equivalent of physical harm, provided that such harm is actually suffered" (Para. 11).  She added:
"For the tort to be committed, as with any other action on the case, there has to be actual damage.  The damage is physical harm or recognised psychiatric illness.  The defendant must have intended to violate the claimant’s interest in his freedom from such harm.  The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not "mean” it to do so.  He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as a result of his behaviour and his deliberately engaging in that behaviour."
48.	I happily adopt this definition of the "tort" though I am not sure I would regard it as an action on the case but this is only of historic interest. I accept that an actual recognised psychiatric illness or bodily injury is required in order for damages to be recovered. 
49.	The limiting factor to the “tort” is the intention to cause harm which harm is in fact then caused or recklessness as to whether that harm would be caused. While the tort is not conventional trespass it is closer to trespass than negligence.  I personally have no difficulty with the statement in Salmond & Heuston, on Torts (21ed) p215 that “one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm resulted from it.” This passage accepts that emotional distress by itself does not suffice. It requires bodily harm to have resulted. It presumably is intended to recognise that emotional distress although severe may not be classifiable by psychiatrists as a psychiatrist illness. It therefor requires, in lay terms, that the severe emotional distress has caused bodily harm. It also requires that this is what the defendant intended to be the consequence or was reckless as to whether this would be the consequence. 
50.	Both as a matter of principle and authority I regard it appropriate that there should be a right to compensation in these circumstances. We are here concerned with an intentional tort and intended harm. In such a situation, unlike negligence, problems as to forseeability do not arise. If the conduct is actionable then compensation should be payable for the intended harm. For this general approach there is general support in Winfield and Jolowicz on Torts (15 ed) p86 /7.
51.	In this jurisdiction I consider that Wilkinson v Downton should be so limited. This provides the proper justification for distinguishing the cause of action from negligence. On that basis I would not seek to doubt the correctness of the decision in Wilkinson v Downton, However, so understood Wilkinson v Downton cannot be relied upon by the claimants in the present case. The judge made no finding that the prison officers were intending to cause or were reckless as to whether they caused harm. Furthermore the findings which he did make were inconsistent with such a conclusion. Had the facts been otherwise and harm had been intended or if there had been recklessness then I would have upheld the decision of the judge. I would have concluded that on the judge’s findings the complainants had suffered the necessary damage.
Consent
52.	Mr Tam, on behalf of the Home Office, argued that because of the width of rule 86, in any event what the prison officers did was justified. Mr Tan argued that because of the language of rule 86, the Home Office was not bound by either what appears on the consent form or what is stated in the policy strategy document which applies specifically to Armley Prison. This cannot be the position. If there are clearly laid down restrictions on how a particular activity is to be conducted, then the conduct of the prison officers cannot be excused merely because those restrictions may not have been observed. The conduct may not be actionable but as we will see the Rule cannot justify their conduct if it were otherwise actionable. I would therefore reject this part of the argument on behalf of the Home Office if it had been necessary to do so.
Consent
53.	Mr Tam also argued the judge was wrong to conclude there had been no real consent here. Again I disagree but do so on the grounds that the consent which was given was given on the basis that the search would be conducted in accordance with proper practice. It was not and so the consent does not provide the Home Office with a defence.
Proportionality
54.	As the Human Rights Act was not in force, the judge should not have become involved in issues as to proportionality. However, as he expressed the view that to conduct the search in the circumstances which were then existent at the prison was disproportionate, I should make it clear that we would not agree with that view. Each case, of course, depends on its facts but when one has the sort of problem with which the prison service is faced in relation to drugs, clearly it is not sufficient to search the prisoner. There are numerous ways in which drugs can be smuggled into the prison and the most vigorous regime of searching prisoners will not in itself suffice. On the findings of the judge, searching, if it had been properly conducted, was perfectly appropriate. The visitor who is treated in accordance with the instructions laid down was reasonably given the choice of having a visit and submitting to being searched or not being searched.
55.	It follows that the appeal has to be allowed except for the finding of battery which was not subject to appeal. This has the effect that Mrs Wainwright’s claim is dismissed and Alan’s claim for damages has to be reduced. Unfortunately the parties were unable to agree what should be the proper measure of damages. We are not in a position to do more than give the most limited consideration to this subject and without the figure which we have determined being regarded as any precedent for other cases, I would reduce the damages that Alan receives to £3,750 including £1000 aggravated damages.

LORD JUSTICE  MUMMERY : 
56.	I agree that this appeal should be allowed for the reasons given by Lord Woolf CJ and Buxton LJ. I shall confine my brief additional comments to the issue of invasion of privacy at common law and in equity and to the applicability of s.3 (1) of the Human Rights Act 1998. 
(1) Invasion of privacy at common law and in equity.
57.	This claim fails, as there is no tort of invasion of privacy. Instead there are torts protecting a person’s interests in the privacy of his body, his home, and his personal property. There is also available the equitable doctrine of breach of confidence for the protection of personal information, private communications and correspondence.
58.	The common law position remains as stated in the Justice Report on Privacy and the Law (1970) paragraph 30 
“…it is generally recognised that at the present time there is no existing common law remedy for invasion of privacy as such.”
59.	According to a more recent statement of the legal position in The Law of Human Rights (Clayton & Tomlinson) (2000) at paragraph 12.06
“ It is well established that English law does not recognise a right of privacy as such.”
60.	As to the future I foresee serious definitional difficulties and conceptual problems in the judicial development of a “blockbuster” tort vaguely embracing such a potentially wide range of situations. I am not even sure that anybody – the public, Parliament, the Press - really wants the creation of a new tort, which could give rise to as many problems as it is sought to solve. A more promising and well trod path is that of incremental evolution, both at common law and by statute (e.g. s.3 of the Protection from Harassment Act 1997), of traditional nominate torts pragmatically crafted as to conditions of liability, specific defences and appropriate remedies, and tailored to suit significantly different privacy interests and infringement situations.
(2) Section 3 (1) Human Rights Act 1998.
61.	With the benefit of the recent decisions of the House of Lords (R v Lambert  [2001] 3 WLR 206 and R v Kansal [2001] UKHL 62) and of this court  (Wilson v First County Trust Limited (No 2) [ 2001] 3 WLR 42 and Pearce v Governing Body of Mayfield Secondary School  [2001] IRLR 669), I am now convinced that I was wrong in the remarks made by me obiter in JA Pye (Oxford) Limited v Graham [2001] 2 WLR 1293 at paragraph 59 on the applicability of the principle of interpretation in s.3(1) to causes of action arising before the section came into effect. Section 3 (1) does not apply retrospectively to the cause of action in this case which arose in 1997. It cannot therefore assist on the construction of Rule 86 of the Prison Rules.  

LORD JUSTICE BUXTON:

Introduction
62.	I gratefully adopt the account set out by the Lord Chief Justice of the facts of this worrying and difficult case.  If the deplorable treatment meted out to Mrs Wainwright and her son had occurred not in January 1997 but in August 1997, after the coming into effect of the Protection from Harassment Act 1997, they would have had a strong case, subject to as yet unresolved difficulties about the definition of “course of conduct”, for relief under s.3 thereof.  If the events had occurred in October 2000, they would equally have had a strong case for relief under s.7 of the Human Rights Act 1998, by reason of a public authority’s lack of regard for article 8 of the European Convention on Human Rights [ECHR].  Whether, in either case, that would have led to recovery in respect of the damage claimed is another matter, to which I will in due course have to return.  But the issue in this case is whether, before those two alterations in the law, English law provided any private law relief at all in respect of conduct of the type with which we are concerned.
63.	I have reached the clear conclusion that the judge, in a difficult and unusual case, was in error in finding that the conduct complained of fell within a tort recognised by English law, subject only to the potential defences of consent and justification.  It will first be necessary to examine in some detail the basis on which the judge felt able to proceed, and then set out what in my judgement is the true state of the law, and how that law should be applied to the facts of the present case. 
An analysis of the judge’s reasoning
64.	In the hope of better explaining some parts of this judgment that follows, I feel constrained to set out the relevant parts of the judge’s reasoning verbatim.  The judge found that Alan Wainwright had been stripped naked and Mrs Wainwright virtually so, dealt with the additional allegation of battery in relation to Alan Wainwright, and then continued: 
“70.	It is clear that the original tort of trespass to the person, namely battery, has been extended in a number of ways beyond its original scope of protecting the interest of the victim in freedom from bodily harm.  In the form of trespass to the person known as assault the interest of the victim which is protected is the victim’s interest in freedom from a particular form of anxiety, namely the apprehension of bodily harm.  The form of trespass to the person involve in false imprisonment protects the interest in freedom from confinement or freedom of movement.  The tort of trespass to the person protects, therefore, a wider range of interests than protection from bodily harm.

71.	Another element in the law of torts generally and trespass to the person in particular is the conduct of the defendant.  Again the original tort focused on some physical act of the defendant, namely touching the plaintiff or doing something which causes the plaintiff to apprehend physical contact.  In Wilkinson v Downton [1897] 2 Q.B. 57 and the subsequent Court of Appeal decision in Janvier v Sweeney [1919] 2 K.B. 316 the Courts extended the types of conduct which could constitute the tort of trespass to the person to include words intentionally uttered which caused physical harm.  In Burnett v George [1992] 1 W.L.R. 156 the principle derived from these two cases, namely that there is a good cause of action if A wilfully does something calculated to cause harm to B, namely infringing B’s right to personal safety, and does in fact cause physical harm to B, was extended to a case of harassment.  The conduct involved in trespass to the person includes conduct which involves no bodily contact with the victim but nevertheless has an effect on the victim by infringing some interest of the victim which the law protects. 

72.	In this case the essence of the complaint is that the prison officers caused Mrs Wainwright and her son to take their clothes off and thereby suffer distress and humiliation in the case of both Claimants and damage to health in the case of Alan Wainwright.  The law of torts already recognizes causes of action where the defendant induces the claimant to act to the claimant’s detriment.  Misrepresentation is one example and intimidation another.  It does not, therefore, seem to me to be a significant extension of the principle in Wilkinson v Downton to hold that if A wilfully causes B to do something which is calculated to cause harm to B, namely infringe B’s legal right to personal safety, and does infact cause physical harm to B, that constitutes a valid cause of action unless it can be justified in some way.  I would hold, therefore, that if the prison officers caused Alan Wainwright to take his clothes off and that was calculated to cause a physical harm, namely illness, to Alan Wainwright there is a valid cause of action in trespass to the person unless their conduct can be justified.

74.	The same principle would apply to Mrs Wainwright but in her case the strip-search did not cause any physical illness.  This raises the question whether this particular form of trespass to the person should be limited to protecting the victim’s right to personal safety or whether it should be extended to other rights, including in particular the right of privacy.  In the case of assault the law of trespass protects the victim’s interest in being protected from mental distress caused by the apprehension of physical harm.  Other forms of trespass to the person protect a victim’s interest in freedom of movement or even freedom from harm caused by verbal practical jokes in bad taste.  It seems difficult to justify a situation in which the same act (inducing someone to take their clothes off) gives the victim a cause of action if the victim succumbs to some form of illness but denies a remedy to a more robust victim who merely suffers distress and humiliation.

75.	In Douglas and Others v Hello! Limited (Judgment 21 December 2000) the Court of Appeal discharged an injunction granted against Hello! Magazine from publishing unauthorized photographs of a wedding.  Another magazine had the exclusive rights to photograph the wedding.  Lord Justice Sedley said that a point had been reached where it could be said with confidence that the law recognized and would appropriately protect a right of personal privacy for two reasons.  The first reason was that there was a powerfully arguable case that the bride and groom had a right of privacy which English Law would recognize and, where appropriate, protect.  The second reason was that the Human Rights Act 1998 required courts to give appropriate effect to the right of respect for private and family life set out in Article 8 of the ECHR.  Lord Justice Keene said that it seemed unlikely that Kaye v Robertson, which held that that there was no actionable right of privacy in English Law, would be decided the same way on that aspect today.  These dicta show how the attitude of the Courts to invasions of someone’s privacy have developed in recent years.  There seems to me to be no valid objection to extending the tort of trespass to the person to protect an interest in privacy…….

[77]…..[Counsel for the claimants] pointed out that in Brind v Secretary of State for the Home Department [1991] 1 All E.R. 720 the House of Lords had held in 1991 that any provision in domestic legislation which was capable of a meaning which either conformed to or conflicted with the ECHR would be construed in conformity with the ECHR on the basis that Parliament was to be presumed to have intended to legislate in accordance with the Convention.  On analogous reasoning it appears to me that it was right to apply and, so far as appropriate, extend the common law so that it is also in conformity with the ECHR even before the passing of the 1998 Act.  Sections 2 and 3 of that Act strengthen the force of that reasoning.

78.	I conclude therefore that the tort of trespass of the person extends to situations where A causes B to do something to himself which infringes B’s right of privacy.  The Defendant is liable to Mrs Wainwright and Alan Wainwright unless the Defendant can set up a valid defence.  The two defences put forward are those of consent and legal justification.”
65.	This reasoning contains the following elements:
i)	The tort of trespass to the person extends to interests other than protection from bodily harm.
ii)	One example of such extension is to “words intentionally uttered which caused physical harm”, as in Wilkinson v Downton [paragraph 71].
iii)	However, “physical harm” in that formulation means illness, which was proved in the case of Alan Wainwright but not in the case of Mrs Wainwright.  Alan Wainwright could therefore recover under this head of tort, but Mrs Wainwright could not [paragraph 72]
iv)	English law however recognises a tort of breach of privacy, independent of any change introduced by the Human Rights Act 1998, and therefore applicable to events occurring in January 1997.  That tort, described as an aspect of trespass to the person, had been committed in relation to Mrs Wainwright, and also, in addition to the Wilkinson v Downton tort, in relation to Alan Wainwright. [paragraph 78].
The inappropriateness of trespass
66.	Whatever torts the Wainwrights may be able to complain of, none of them are, or are properly derivatives of, the tort of trespass to the person, and only confusion was caused by the attempt to force what occurred in this case into that straitjacket.  That objection is not merely an obsolete recourse to the forms of action, nor a reflection of a mediaeval distinction between trespass and case.  As I shall demonstrate, it reflects fundamental principles by which modern English law, rightly or wrongly, limits the ambit of tortious liability.
67.	Leaving aside false imprisonment, which is sometimes, though not very happily, categorised as a trespass to the person, trespass in this sense consists of battery and of assault.  Battery is physical interference with the person of the plaintiff.  That will normally consist of direct touching of the person, but has also been extended to acts directly likely to cause such interference, such as hitting the plaintiff’s horse, causing him to fall off; and more controversially, in the criminal understanding of battery, to the creating of a dangerous situation from which physical interference naturally results, such as putting sulphuric acid into a hot air dryer that when used by others blew out and caused them injury (DPP v K [1990] 1 WLR 1067); or locking the doors of a theatre and then causing a panic, with injury occurring to persons in the resulting crush (Martin (1881) 8 QBD 54).  The unifying factor in all these cases is an invasion of the physical person the plaintiff.   
68.	An assault has long been defined as an overt action, by word or by deed, indicating an immediate intention to commit a battery and with the capacity to carry the threat into action: see Clerk & Lindsell on Torts (18th edition), paragraph 13-13; or, as it is sometimes expressed, to put the plaintiff in fear of an immediate assault.  This tort is therefore parasitic upon, and protects the interests protected by, battery.  
69.	The importance that the law attaches to protecting citizens from direct physical interference with their persons is demonstrated by two particular features of the tort of battery, both of which sharply distinguish it from the tort of negligence.   The first, expounded in further detail in the judgment of this court in Wilson v Pringle [1987] QB 237, is that any intended “hostile” touching founds an action for battery, even if there is no intention thereby to cause injury or actual physical harm.  The second is that battery is actionable per se.  That in turn implies two things: first, damages are recoverable for the act of interference itself, even if it causes no injury and no loss; but, secondly,  if damage is caused by a trespass it is recoverable simply on the basis of causation, and does not additionally require foreseeability to be established.
70.	These rules show the basis of the tort of trespass, in the protection of interference with the person of the plaintiff by direct contact with him.  Once the defendant causes such contact, without justification, he is not only liable for damages even if no quantifiable loss results; but also liable for any loss that is in fact caused by the interference.  These rules are strikingly different from those obtaining in negligence.  Liability in negligence is limited to the type of damage that the defendant should have foreseen as liable to result from his acts: authority is hardly needed for that proposition, but I would venture to refer to the recent exposition by Lord Hobhouse of Woodborough, speaking with the agreement of a majority of the House, in Platform Home Loans Ltd v Oyston Shipways Ltd [2000] 2 AC 190 at p209A.  
71.	There are therefore powerful reasons why a claimant will be well advised to seek to categorise his claim as sounding in trespass.  Once he has passed through that door, he not only is able to recover for unforeseeable damage, but also is relieved of the issues of duty of care and of fairness, justice and reasonableness that are applied to limit recovery in negligence.  And on the other side of the coin there are strong policy reasons why the tort of trespass to the person should be limited to its proper sphere.  It was these considerations that Lord Denning MR had in mind when he said in Letang v Cooper [1965] 1 QB 232 at p 239E that an unintentional but negligent battery must be pleaded in negligence and not in trespass.  
72.	But our case goes further than that.  It is not a case of direct interference, battery, at all, but of causing the claimants to do something to themselves that led to humiliation and illness.  Nor was the case argued to be a case of trespass, nor was it seen as such by the judge.  Rather it was presented as an extension of the tort of trespass into the areas covered by Wilkinson v Downton and privacy.  Such an extension of trespass is unsupported by authority, entirely unprincipled, and if adopted would severely undermine the policy reasons for limiting the ambit of trespass that are referred to above.
73.	It does not, however, follow from that that the appeal must necessarily succeed.  It is possible to read the judgment as a decision that the Home Office is liable on the basis of separate and independent torts, outside the law of trespass, of ‘Wilkinson v Downton’ in the case of Alan Wainwright, and of breach of privacy in respect of both of the Wainwrights.  If, as the judge thought, the requirements of those torts were in fact fulfilled, I would not permit the argument to fail just because of the inappropriate pleading in terms of trespass.  I therefore turn to those torts.
Wilkinson v Downton
74.	In Wilkinson v Downton Wright J said this, [1897] 2 QB at p58:
“The defendant has, as I assume for the moment, wilfully done an act calculated to cause physical harm to the plaintiff-that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.  That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act.  This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant…..One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind.”
75.	The greatest respect is always paid to anything that fell from RS Wright J: see for instance Goddard LJ in Peters v Prince of Wales Theatre Ltd [1943] KB 73 at p77.  However, one cannot escape from the observation that Wilkinson v Downton has puzzled generations of tort lawyers.  No little part of the difficulty has sprung from a tendency to quote Wright J’s reference to acts “calculated to cause physical harm” divorced from the rest of his formulation of the cause of action: as indeed the judge did in our case, in paragraph 72 of his judgment.  That is particularly unfortunate, because the word “calculated” is ambiguous between acts subjectively intended to cause harm and acts objectively very likely to cause harm.  And Wright J’s extension of “physical harm” into infringement of the “legal right to personal safety” carries difficulties of its own, since it again is ambiguous between the actuality of physical harm and a threat of such harm.
76.	Wright J provided further explanation by his later reference, in a passage much less often quoted, to an 
“act so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant.”
That, however, raises further difficulties, since although using the concept of intention it stops short of requiring actual intention, and rather speaks of “imputed” intention, in terms that would nowadays be analysed as referring to gross (objective) negligence.
77.	This court took up the matter in Janvier v Sweeney [1919] 2 KB 316.  Much of the judgments is addressed to the question in issue in that case of whether it was possible to recover at all for “nervous shock”.  That had been doubted in the Privy Council case of Victorian Railways Commissioners v Coultas (1888) 13 App Cas 222, but the Court of Appeal recognised that if they were to accept that argument they would have to differ from Wilkinson v Downton, which they declined to do.  The judgments are, however, less clear as to the acts and intentions leading to the nervous shock that are sufficient to found the tort.  While not differing from, indeed adopting, the formulation of Wright J, both Bankes LJ and Duke LJ laid stress on the fact that the plaintiff in Janvier v Sweeney had put the plaintiff in a state of terror, Duke LJ saying in terms that the defendant had intended to produce that condition.
78.	The learned editor of the Law Reports report of Janvier v Sweeney synthesised the effect of the judgments thus:
“False words and threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable.”
This statement is important, because in Khorasandjian v Bush [1993] QB 727 at p 735G the majority in this court accepted it as a correct expression of the doctrine of Wilkinson v Downton and Janvier v Sweeney; and would have granted quia timet relief against such words that could be expected, if continued, to result in a recognisable psychiatric illness: which is how the majority, at p 376C, considered that “nervous shock” should now be understood.  These observations were obiter, in view of the majority’s placing of liability on the basis of private nuisance; but they were fully considered and, because of their obiter nature have, as Mr Wilby QC urged upon us, escaped the condemnation by the House of Lords in Hunter v Canary Wharf [1997] AC 655 of the nuisance aspects of Khorasandjian.
79.	I respectfully consider that the headnote in Janvier v Sweeney, adopted in Khorasandjian, comes as close as it is possible to do to a general statement of the rule in Wilkinson v Downton.  If that is not correct, then the rule must be limited to the statement in the latter part of Wright J’s observations cited in paragraph 13 above, that the defendant’s act was so clearly likely to produce a result of the kind that occurred that an intention to produce it should be imputed to him: that is to say, objective recklessness.  I do not find helpful in this connection the only other Court of Appeal case shown to us, Burnett v George [1992] 1 FLR  525, since there the court simply read the “calculated” formula of Wilkinson v Downton into the form of an injunction, without further investigating the implications of that language.
80.	It follows that I cannot agree with the formulation adopted in Salmond & Heuston on Torts (21st edition, 1996), at p215 from paragraph 46 of the Restatement, Torts, 2d, that 
“one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is liable for such emotional distress, provided that bodily harm results from it”
No doubt the outrageous nature of the defendant’s conduct was not far from the minds of the judges in Wilkinson v Downton and, in particular, Janvier v Sweeney.  However, moral condemnation is not enough.  What is required by the Khorasandjian formulation is knowledge that the words are likely to cause, that is to say subjective recklessness as to the causation of, physical injury in the sense of recognisable psychiatric illness.  Intention or recklessness merely as to severe emotional distress, from which bodily harm happens in fact to result, is not enough.  
81.	It also follows that, with equal respect, I am unable to adopt as a complete statement of the law the observation in paragraph 13-17 of Clerk & Lindsell that 
“It would appear that any act deliberately designed to ‘infringe [the] legal right to personal safety’, albeit falling outside the torts of assault and battery, will now readily be classified as tortious.”
The authority cited for this proposition is Burrows v Azadani [1995] 1 WLR 1372.  Since that case largely relied on that part of Khorasandjian that was disapproved in Canary Wharf; and in any event was an injunction case in which this court was of the view that conduct could be enjoined even if it was not in itself tortious; its authority in the present context must be open to question.  And while it is correct that Clerk & Lindsell’s formulation does quote the ipsissima verba of Wright J, it leaves unresolved the uncertainties as to the ambit of the “right to personal safety” to which I have ventured to draw attention in paragraphs 75-76 above.
82.	After the close of argument in the present appeal, and after the substance of the foregoing paragraphs of this judgment had been drafted, there came to our attention the judgment of this court in Wong v Parkside Health Authority [2001] EWCA Civ 1721, 16 November 2001, in which another division of this court was, like ourselves, called upon to consider the correct ambit of ‘Wilkinson v Downton’. 
83.	This court said, at paragraph 12 of the judgment in Wong:
“The damage is physical harm or recognised psychiatric illness.  The defendant must have intended to violate the claimant's interest in his freedom from such harm.  The conduct complained of has to be such that that degree of harm is sufficiently likely to result that the defendant cannot be heard to say that he did not ‘mean’ it to do so.  He is taken to have meant it to do so by the combination of the likelihood of such harm being suffered as the result of his behaviour and his deliberately engaging in that behaviour”
and then referred in support of that formulation to the observations of Dillon LJ in Khorasandjian at [1993] QB p735G.  The court accordingly saw as equivalent in their effect the two formulations between which a distinction was drawn in the first two sentences of paragraph 79 above.
84.	The decision in Wong, to the extent to which it differs from the analysis earlier in this judgment, binds us as an earlier decision of this court.  However, in the present case it does not matter which of these various detailed formulations is adopted, because it is plain that the claimants can bring themselves within none of them.  Because the case proceeded on the basis of the formulaic expression of “calculated to cause physical harm”, without further examination of what that meant, the judge was not asked to make, and did not make, any finding as to actual intention to cause, or imputed intention to cause, or recklessness, either objective or subjective, as to physical injury, recognisable psychiatric illness, or even severe emotional distress.  Mr Wilby gallantly sought to argue that some such findings could be extracted from the last two sentences of paragraph 72 of the judgment, but with respect to him all that the judge did there was to recite in abstract terms what he considered the law to be, rather than analyse the facts of the case in the light of that law.
85.	A claim based on Wilkinson v Downton must therefore fail.  I should however perhaps make it clear that, although the claim fails because of the absence of findings necessary to support it, I do not regard that as a merely technical or formalistic objection.  Had the judge been asked to make any of the findings referred to in paragraph 84 above it seems to me that he would have found it difficult or impossible to do so: however much the prison officers ought to have realised, and perhaps did realise, that what they asked the Wainwrights to do would and did cause them offence and distress.
86.	It is therefore necessary to turn to the alternative basis on which the judge decided the case in favour of Alan Wainwright, and the only basis on which, because the search did not cause her physical illness, he decided the case in favour of Mrs Wainwright: the tort of invasion of privacy.
Privacy: introduction
87.	The present case is important, not only because it appears to be the first case in which recovery has been achieved simply for a breach of the right to privacy; but also because, as Brooke LJ pointed out in paragraph 71 of his judgment in the important case of Douglas and others v Hello! and others [2001] QB 967 [Douglas], previous investigations of this area have all been in cases where, in one way or another, confidence can be said to have been broken.  That was of course the case in Douglas itself.   The difficulty arises, as Brooke LJ foresaw, in a case where privacy alone is in issue; and that is this case, since whatever else the Wainwrights may be able to complain of, they cannot and do not say that any right of confidence has been infringed.
88.	It will therefore be necessary to examine whether there was in 1997 a tort of breach of privacy, and if so what was its ambit.  That will require attention both to authority and, since this is an area in which it has been suggested that the judges should take the initiative in extending the law, also to some issues of policy.  First, however, it is necessary to dispose of a series of issues that relate to the ECHR.
Privacy: the ECHR
89.	First, since the events complained of took place in 1997, the tort of privacy that is relied on, if it exists, must have an existence independent of the Human Rights Act 1998.  I respectfully agree with what is said by the Lord Chief Justice in paragraphs 39 and 40 of his judgment:
“the claimants [are] seeking to rely on the Convention to change English substantive law…[the 1998 Act] certainly cannot be relied on to change substantive law by introducing a retrospective right to privacy which did not exist at common law”
90.	Second, that implies that the tort must indeed be a tort, that is, sounding in damages in private law, and available against any kind of defendant: however much in the present case the complaint is about the conduct of a public authority in the performance of its public functions.
91.	Third, however, is the judge’s reasoning in paragraph 77 of his judgment that, by analogy with the approach to legislative construction that was adopted in R v Secretary of State ex parte Brind [1991] 1 AC 696, the common law should be read as being “in conformity with the ECHR” even before the passing of the Human Rights Act.  While courts before the  Human Rights Act were alert to the importance of the United Kingdom’s treaty obligations, there was never any suggestion of an approach as broad as that of the judge, and positive authority against it, specifically in the context of privacy, in the judgment of Megarry V-C in Malone v Metropolitan Police Commissioner [1979] Ch 344.  And that is quite apart from the more general principle, enunciated for instance by Lord Templeman, speaking for a majority of the House, in JH Rayner Ltd v Department of Trade [1990] 2 AC at pp 476G-477A, that international treaties, such as was the status of the ECHR in England before 2 October 2000, cannot confer rights enforceable in English courts.  Indeed, if the judge were right, it would be difficult to understand why Parliament thought it necessary to pass the Human Rights Act at all.
92.	And further, quite apart from that fundamental difficulty, the judge’s approach does not face up to the fact that the ECHR by its terms creates obligations only against the state, and not against other private individuals.  That point was plainly in the mind of Megarry V-C in Malone, at p 379B of the report:
“It seems to me that where Parliament has abstained from legislating on a point that is plainly suitable for legislation, it is indeed difficult for the court to lay down new rules of common law or equity that will carry out the Crown’s treaty obligations, or to discover for the first time that such rules have always existed.”
Some have argued that, with the advent of the Human Rights Act, it is possible to use the recognition of the courts as “public authorities” by s.6(3)(a) thereof to create private law rights broadly in the same verbal terms as the wording of the articles of the ECHR.  There are many difficulties about that contention: I readily adopt the observation of Sedley LJ in paragraph 128 of Douglas that this also is not the place, at least without much fuller argument, in which to resolve such a large question.  But the present importance of that issue is that it is seen to be the terms of the Human Rights Act, and not, as the judge thought, the direct application of the terms of the ECHR, that render it even arguable that the ECHR creates new torts in English private law.
93.	Fourth, it may be convenient to say that, if the events in question had occurred after 2 October 2000, they would in my view have grounded a right to relief for the Wainwrights under s.7(1)(a) of the 1998 Act, by reason of the prison authorities’ breach of Article 8 of the ECHR.  That does not, however, engage a private law right in tort, such as the Wainwrights must establish in relation to events occurring before 2 October 2000, because s.7(1)(a) makes the defendants liable on the basis of, and only on the basis of, their status as public authorities.  I would consider that the right to privacy in article 8(1) had been infringed, and that that breach could not be offset under article 8(2).  That would not be because, as the judge seems to have thought, at paragraphs 107-108 of his judgment, that something like a “blanket” policy of searching visitors to suspected drug dealers was not justified: in the context of the threat of drug abuse in prisons that policy was well within the reasonable, and if it is relevant the proportionate, actions of the prison authorities.  Rather, the failure was in the manner in which this particular search was conducted, a matter to which I return when considering the defence of consent.
94.	It does not, however, follow from that that the Wainwrights could recover in respect of the injuries on which their present claim is based, as opposed to recovering some amount, perhaps not dissimilar to the aggravated damages awarded in this case, to mark the unlawful invasion of their privacy.  That is because it is wholly unclear what are the rules of remoteness attaching to a claim under s.7; whether breaches of  the ECHR by public authorities are actionable per se; and if they are, what heads of damage and amounts of damages are recoverable.  I mention these matters because they are difficulties that equally attach to the private law tort of breach of privacy that is asserted in this case.
95.	I have ventured to address these matters in some detail because, when considering the implications for private law torts of a case such as Douglas that was decided after 2 October 2000, it is necessary to be clear as to what springs from the effect of the Human Rights Act, and what from the application of the common law as it stood before that date.  To the latter question I now turn.
Privacy: authority
96.	Mr Wilby relied very heavily upon an observation of Sedley LJ in paragraph 126 of Douglas.  This observation was obiter, since the court was satisfied that recovery was available in respect of breach of confidence, in which circumstances it is unnecessary to go on to the wider category of acts argued to ground liability for breach of privacy.  Nevertheless, the passage indubitably demands the closest attention.  The Lord Justice said:
“What a concept of privacy does, however, is accord recognition to the fact that the law has to protect not only those people whose trust has been abused but those who simply find themselves subjected to an unwanted intrusion into their personal lives.  The law no longer needs to construct an artificial relationship of confidentiality between intruder and victim: it can recognise privacy itself as a legal principle drawn from the fundamental value of personal autonomy.”
It will be noted that this formulation of the basis of recovery is distinctly different from that adopted by the judge, and discussed in paragraphs 91-92 above.  Sedley LJ saw the tort as one existing in English private law, independently of the ECHR.  True it is that at paragraph 111 he referred to the 1998 Act as “arguably [giving] the final impetus to the recognition of a right of privacy in English law”: which may of course raise some questions about the status of the tort in 1997.  But in truth the process is seen as one of judicial development of the common law, with the ECHR serving as, at most, a catalyst for that development.
97.	This is at first sight an attractive prospect and, if I may very respectfully say so, it could not have been put more attractively than it was by my brother in Douglas.  However, authority in this court precludes our taking that course; and in addition there are serious difficulties of principle in the way of the judges creating a tort in the terms now suggested.
98.	With one exception, all of the previous cases that are seen as providing the germ of a tort of breach of privacy were decided on the basis of breach of confidence.  That is clear from the exposition by Brooke LJ in paragraphs 64-71 of Douglas, as indeed from the exposition of Sedley LJ at paragraphs 116-122.   And that is true even of the well known observation of Laws LJ in Hellewell v Chief Constable of Derbyshire [1995] 1 WLR 804 at p807, which was strongly relied on by Sedley LJ in Douglas:
“If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the picture would…as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it [emphasis supplied]”
99.	These cases therefore do nothing to assist the crucial move now urged, that the courts in giving relief should step outside the limits imposed by a requirement of a relationship of confidence, artificial or otherwise.  This court was called on to consider making that move in Kaye v Robertson [1991] FSR 62.  It declined to do so.
100.	The conduct of the defendants in that case, in breaking into the plaintiff’s hospital ward, taking a photograph of him in a distressed state, and then seeking to publish it in their newspaper, was, in the words of Bingham LJ at p70, a monstrous invasion of his privacy. Glidewell LJ said however that there was no right of action in English law for breach of a person’s privacy, and both Bingham LJ and Leggatt LJ expressed, in extremely strong terms, their profound regret that English law provided no remedy on that basis.  In Douglas, at paragraph 113, Sedley LJ argued that Kaye did not in fact decide that point, since the court “adopted-for it plainly shared-counsel’s assumption that there was [no tort of breach of privacy]”.  However, first, if a court not only adopts but says that it actively shares a concession or assumption by counsel, that assumption then becomes part of its reasoning, whatever may have been the origin of the point.  And, second, even if, on a very narrow view of ratio, it is possible to say that the court’s observations about privacy were obiter, the language of Bingham and Leggatt LJJ shows, in what Brooke LJ characterised in Douglas at paragraph 61 as uncompromising terms, that they had directed their minds to the possibility of relief for breach of privacy, and had rejected that possibility.  Even if, which I doubt, it is in technical terms open to us to do so, it would be a very strong thing indeed for a subsequent division of this court to say that they were wrong.
101.	Kaye was consistent with the only other clear authority in this field, the judgment of Megarry V-C in Malone.  The issue that Kaye addressed was reverted to again in Khorasandjian v Bush.  Counsel argued in that case that the defendant’s behaviour was an actionable interference with privacy.  That, if correct, would have provided the court with a ready-made basis for achieving the result that they plainly, and rightly, sought, of protecting the plaintiff from the unwanted attentions of the defendant, without becoming entangled either in the obscurities of Wilkinson v Downton or in an unprincipled extension of the law of private nuisance.  However, Dillon and Rose LJJ did not even mention this potential right of action.  The assumption that that was because they thought the claim was without foundation in law is given force when one turns to the judgment of Peter Gibson J  He said, at p 744F:
“[counsel] submitted that the plaintiff has a right of privacy with which the defendant was unreasonably interfering.  But that argument is not open to him in the light of the decision of this court in Kaye v Robertson [1991] FSR 62, confirming that English law has recognised no such right.”
102.	In my respectful view, the combination of the judgments in Khorasandijan comes very close indeed to establishing as a matter of ratio that there is no English law tort of breach of privacy.  Certainly, they are a formidable barrier to this court now declaring that such a tort had in some way come into existence by 1997.
103.	That view is reinforced by a number of further considerations.
104.	First, one of the situations that was, rightly, thought to be most in need of protection on the ground of privacy was the causing of distress by harassment, besetting and intrusive telephoning, often in a sexual context: the very conduct that engaged the concern of this court in Khorasandsjian.  After an exhaustive analysis of the authorities before 1997 this court concluded in Wong v Parkside Health Trust [2001] EWCA Civ 1721, at paragraph 30, that before the passing of s.3 of the Protection from Harassment Act 1997 there had been no tort of harassment in English law.  Two comments follow.  First, nowhere in any of the cases reviewed in Wong was it suggested that the matter might be regulated on the basis of a tort of invasion of privacy which, if it had existed, would have been an obvious solution to the problems of harassment.   Second, if the tort of invasion of privacy now contended for had always been in existence the statutory tort of harassment, introduced in 1997, would appear to be substantially redundant: granted in particular that by s.7(2) of the 1997 Act “harassment” includes the causing of distress, the very circumstance that most attracts demands for the protection of privacy.
105.	Second, at paragraph 124 of his judgment in Douglas Sedley LJ drew attention to the ruling of the European Commission on Human Rights in Earl Spencer v UK (1998) 25 EHRR CD 105; commented that that ruling had been the considered view of a body of distinguished jurists; and said that it would not be a happy thing if the national courts were to go back without cogent reason on the United Kingdom’s successful exegesis of its own law.  I respectfully agree.  But the law expounded by the United Kingdom and accepted by the Commission was indeed that there is no law of privacy, as such, in England and Wales, citing Kaye v Robertson.  That submission cannot of course affect us if it was wrong; but at the lowest it represents a respectable strand of construction of the current state of English law.
106.	Third, and further in that respect, I have not been able to find any commentator who thought, at least before the coming into effect of the Human Rights Act, that there was a tort of invasion of privacy in English law, as opposed to thinking that there should be such a tort.  Paragraph 1-34 of Clerk & Lindsell, the leading authority, says of the law in 2001, and thus a fortiori of the law before 1998:
“Privacy remains an interest unprotected by the English law of torts.  However gross the invasion of the claimant’s privacy, that violation of privacy is not itself a tort.”
That English law provides no direct action for invasion of privacy is also the view of the learned editor of the fifteenth edition of Winfield and Jolowicz on Tort (1998), at pp 464-465; and of Sir Brian Neill in his essay in the important collection Protecting Privacy (ed. Markesinis, 1999), at p.17.
107.	I am therefore plainly of the opinion that it is not open to us to grant relief to the claimants on the basis of an invasion of their privacy.  Since, however, the protection of privacy has been seen by some as nonetheless a proper field for the exercise of judicial activism, I venture to go further and draw attention to some difficulties that stand in our way.
Privacy: policy
108.	“Privacy” covers a very wide range of cases, which are affected by a very wide range of policy considerations.  What occurred in our case is perhaps one of the simpler examples.  The right not to have another stare at one’s naked body, save by consent or in clearly defined situations of necessity, would be unambiguously regarded as a matter of privacy.  But what of the obtaining of information that (on the assumptions made to justify the extension of the law of tort into new situations of privacy) is not covered by the law of confidence?  What of the making of true statements about others, hitherto rigorously excluded from the law of defamation?  What of the whistle-blower?  And, indeed, what of a preference to have photographs of your wedding in one publication rather than another?
109.	As is well accepted, in none of these cases can a right to privacy be absolute.  But that is only the start.  What needs to be worked out is the delicate balance, particularly in the area of the publication of information, between the interests on the one hand of the subject and on the other of someone entering his private space, or of the publisher and the latter’s audience.  It also has to be borne in mind that what is necessarily proposed is a general tort, available not only to private citizens who simply want to get on with their own lives, like the Wainwrights; but also to corporate bodies that want to keep their affairs private.  That plainly adds a further dimension of considerable difficulty to attempts to formulate the proper ambit and balance of the tort.
110.	That even without those complications, and while remaining within the ambit of private individuals, differing views can be held on the issue of protection of privacy, and that such views can change over time, can perhaps be illustrated from the classic article that first investigated a right to privacy, and which is still viewed as a significant intellectual source of the proposed tort: see paragraph 120 of the judgment in Douglas.  The article is by Samuel Warren and Louis Brandeis, (1890) 4 Harvard LR 193.   Its point of departure is believed to have been the behaviour of the press in Boston on the occasion of the wedding of Mr Warren’s sister.  The learned authors commented, (1890) 4 Harvard LR at p 196:
“Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery.  To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.  To occupy the indolent, column upon column is filled with idle gossip, which can only be provided by intrusion upon the domestic circle….When personal gossip attains the dignity of print, and crowds the space available for matters of real interest to the community, what wonder that the ignorant and thoughtless mistake its relative importance.”
It may be doubted whether a judge in 2001 would feel able to advance quite that justification for awarding damages for breach of privacy.
111.	All these considerations indicate that not only is the problem a difficult one, but also that on grounds not merely of rationality but also of democracy the difficult social balance that the tort involves should be struck by Parliament and not by the judges: as Megarry V-C urged in Malone, in the passage quoted in paragraph 92 above, and Legatt LJ urged in Kaye v Robertson.  And that is rendered the more, not the less,  the case by reason of the fact that Parliament, and those who advise it, have themselves found the problem of the limits of tort of invasion of privacy to be one of profound difficulty.  The Law Commission has had the issue of a tort of invasion of privacy on its agenda since the 1960s.  No proposals have emerged.   The Younger Committee on Privacy (Cmnd 5012, 1972), considered in detail whether there should be “a general right of privacy” protected by law, and rejected that proposal, on grounds, amongst others, of uncertainty: see in particular the discussion at paragraphs 660-666 of the report.  Subsequent initiatives, summarised by Brooke LJ at paragraphs 89-90 of Douglas, have borne no further fruit.  
112.	Whatever sympathy may be felt for the particular position of the Wainwrights, we have to remember that laws are not made for particular cases but for men in general: R ex parte Pretty v DPP [2001] UKHL 61, at paragraph 29, Lord Bingham of Cornhill.  And I have no doubt that in being invited to recognise the existence of a tort of breach of privacy we are indeed being invited to make the law, and not merely to apply it.   Diffidence in the face of such an invitation is not, in my view, an abdication of our responsibility, but rather a recognition that, in areas involving extremely contested and strongly conflicting social interests, the judges are extremely ill-equipped to undertake the detailed investigations necessary before the proper shape of the law can be decided.  It is only by enquiry outside the narrow boundaries of a particular case that the proper ambit of such a tort can be determined. The interests of democracy demand that such enquiry should be conducted in order to inform, and the appropriate conclusions should be drawn from the enquiry by, Parliament and not the courts.  It is thus for Parliament to remove, if it thinks fit, the barrier to the recognition of a tort of breach of privacy that is at present erected by Kaye v Robertson and Khorasandjian.
Privacy: remoteness of damage
113.	Mr Wilby said confidently that once a tort of breach of privacy was established, all damage caused by that breach was recoverable simply on the basis of causation.  There may have been some echo in that formulation of the original claim in trespass: see paragraph 70 above.  However, the claim, and in particular the claim on the basis of the facts of the present case, illustrates a further uncertainty about a tort of breach of privacy.  It is entirely unclear why the illness that in the event overtook Alan Wainwright should be recoverable just because it followed upon a breach of privacy: a tort whose values do not include prevention of physical injury.  And even more difficult questions can easily be hypothesised: for instance, if non-confidential and true, but private,  information is published about someone, with the result that he loses his job, or his marriage.
Privacy: conclusions
114.	Even, therefore, if the Wainwrights could bring themselves under the protection of a tort of invasion of privacy, I would find it difficult to see how they could recover for special damage claimed in this case.  But in the event that issue does not arise, since it is still the law of England that there is no tort of invasion of privacy.
115.	That suffices to reverse the finding of the judge and to allow the appeal.  However, in deference to the arguments that we received, and also to the importance of the issue, I do go on and consider the two defences upon which the Home Office sought to rely, on the assumption that otherwise it would have been liable.  Those defences are consent and justification.  I do not consider that either of them could be made out in this case.
Consent
116.	The judge held, at paragraph 82 of his judgment, that the Wainwrights “consented to the strip-search” because they were told that, if they did not, they could not visit Mr O’Neill; but because the consent was obtained by a show of authority it was not real consent in law. 
117.	The question of the distinction between consent and submission, and of the concepts of  “social” or “forced” consent, is a subject of considerable difficulty in relation to crimes involving offences against the person, and for the same reasons difficult also in the law of tort.  Some account of the subject in the former context is given in Law Commission Consultation Paper No 134, Consent and Offences Against the Person (1993), at paragraphs 24.1-31.1.   It may be mentioned in passing that the authority relied on by the judge, the judgment of Willes J in Warner v Riddiford (1858) CB (ns) 180 at p 206, is not a case on consent.  These issues do not however arise in the present case, because the Home Office’s argument, and the judge’s acceptance of it, was mistaken on the facts.
118.	What the Wainwrights, and all other visitors to Armley Gaol, were asked to consent to was not “a strip-search” in general terms; with the result, as the Home Office appeared to argue, that they had forfeited their right to complain about anything that was done as part of an activity that could be so described.   Rather, the search that was proposed and for which consent was sought was that described in the prison’s procedure document, and set out on the back of the consent form.  The relevant procedures have already been set out by the Lord Chief Justice, but it will be convenient to repeat the prison’s own public statement of the limits of the search:
1.	Two officers will be present.  No person of the opposite sex will be present.
2.	You will not be required to be fully undressed at any stage.
3.	You will be asked to remove clothes from one half of your body, and pass them to an officer so that they may be examined.  Your body will then be examined briefly so that the officers can see if anything is concealed.  The clothes will then be returned to you without delay and you will be given time to put them on.
4.	The procedure will then be repeated for the other half of your body.
5.	The soles of your feet will be checked.
6.	When your upper body is undressed, you may be required to hold your arms up.
7.	When your lower body is undressed, you may be required to position yourself in such a way as to enable staff to observe whether anything is hidden in the genital and anal areas.  Your body will not be touched during the process.
8.	If you have long hair, it may be necessary for an officer to search it.  It may also be necessary for an officer to check your ears, and mouth.  You will not be touched otherwise.

119.	Since Alan Wainwright was required wholly to undress, and Mrs Wainwright effectively so, items 2 and 3 of these rules were flagrantly departed from.  So effectively was item 1 in the case of Mrs Wainwright, to the extent that she may have been visible from outside the office.   If the Wainwrights had been shown the consent forms before the procedure and had them explained to them, then it would have been impossible thereafter to contend that they had consented to what in the event occurred.  I reject as entirely unreal Mr Tam’s contention that they could nonetheless have caused the search to be interrupted; and in any event the point does not arise on the facts, because the Wainwrights had not been told what the rules of the search were.  The Home Office cannot be in a better position because it did not follow its own procedure that required it to present the forms before the search began.   I would therefore hold that no consent was given to what actually occurred; so the defence would fail on that ground alone.
Justification
120.	This defence was based on a comparison between rule 86(1) of the Prison Rules, which says, but says no more than, that 
“Any person or vehicle entering or leaving a prison may be stopped, examined and searched”
and rule 39(2), relating to searches of prisoners, which provides that 
“a prisoner shall be searched in as seemly a manner as is consistent with discovering anything concealed.”
Expressio unius, said the Home Office, exclusio alterius.  The search of a visitor does not have to be seemly.
121.	I regret that this point was ever taken.  A rule as broad as rule 86, giving power over persons who have committed no crime, and who attend as part of the accepted social policy that prisoners’ families are entitled to contact with them, cannot have been intended by Parliament, and cannot be justified, in terms that give largely unlimited powers to the prison authorities.  And, as Mr Wilby acutely pointed out, the prison authorities themselves did not think that to be the case, as evidenced by their own rule-book, already quoted, and by their internal strategy document that is set out by the Lord Chief Justice at paragraph 18 of his judgment.  This is not a question of limitation on Wednesbury grounds, as the Home Office submitted and the judge accepted; rather, it is a question, to be determined by the court, of what the legislation is to be taken as authorising.  In company with the rulebook, I hold that it did not authorise the search that in fact took place.
122.	The judge did not take that view.  Rather, the case became involved before him in a long enquiry into whether the form of the search could be justified in terms of article 8(2) of the ECHR.  The basis for this enquiry was the contention that rule 86, even in its application before 2 October 2000, had by reason of s.3(1) of the 1998 Act to be read by a court after that date in terms that if possible complied with the ECHR.  I respectfully agree with what the Lord Chief Justice says on that subject in paragraph 29 and following of his judgment.  I would also venture to add that in my view any liberty for this court to hold that s.3(1) of 1998 Act has retrospective force has been put to rest by the decision in Pearce v Mayfield School [2001] EWCA Civ 1347, [2001] IRLR 669, as expressed in the judgment of Judge LJ at paragraph 79.  Nothing in Kansal [2001] UKHL 62 undermines the binding authority for this court of Pearce v Mayfield.
123.	None of this, however, affect the result of this appeal.  A defence of justification would fail for the reason set out in paragraph 121 above, and not because of any implication of the ECHR.
Disposal of the appeal++
124.	I would allow the appeal, because the claimants cannot make out any claim in either trespass, ‘Wilkinson v Downton’ or breach of privacy.  If a prima facie claim had been made out, it would not have been defeated by a defence either of consent or of justification.
125.	I respectfully agree with the Lord Chief Justice as to the disposal of the further outstanding matter of the measure of damages to be awarded to Alan Wainwright in relation to the separate battery committed upon him.

Order:  Appeal allowed; Mrs Wainwright's claim dismissed; Mr Wainwright's claim reduced to £3,750; appellants to have costs against Mrs Wainwright, not to be enforced without leave of court; permission to appeal to the House of Lords granted.
(Order not part of approved judgment)