False imprisonment

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Police false imprisonment

False imprisonment is the unlawful imposition of constraint on another’s freedom of movement from a particular place.Collins v Wilcock [1984] 1 WLR 1172

Liversidge v Anderson [1941] UKHL 1 (03 November 1941); [1942] AC 206, 245 Every imprisonment is prima facie unlawful and it is for a person directing an imprisonment to justify his act, per Lord Atkin in Liversidge Liversedge v Anderson. The only exception is in respect of imprisonment ordered by a judge, who from the nature of his office cannot be sued.

It is for the claimant to prove on a balance of probability that he was physically detained. This is not normally in dispute. The onus then shifts onto the defendant.

The defendant must then prove the existence of facts amounting to reasonable grounds for suspicion, giving rise to the power to arrest. Perhaps surprisingly whether he has reasonable grounds is not a question of fact for the jury but for the judge alone to decide. The reasons why this is for the judge alone are well described in the leading case of Dallison v Caffrey [1965] 1 QB 348, in particular pages 369 - 372. Reasoning relates to 'judicial distrust of Jacobinism' at a formative stage in the making of the law. If there is no dispute as to the relevant facts and the only issue remaining is the reasonableness of the arrest, the jury can be discharged and the judge alone proceed to a decision. However, if the facts amounting to reasonable grounds for suspicion are in dispute, then they must be determined by the jury by answering the questions formulated by the judge. This is the most important task the judge has, but in practice counsel will either agree the questions and submit them for approval, or will submit their rival questions for the judge to pick from or amend.

The defendant must also prove that the power of arrest was properly exercised and true reasons for arrest were given to the claimant, unless it was impracticable to do so. If there is a dispute about these matters, then it is also a question of fact for the jury.

Craik, Chief Constable of Northumbria Police, R v Newcastle Upon Tyne Magistrates' Court (30 April 2010)

Craik, Chief Constable of Northumbria Police, R (on the application of) v Newcastle Upon Tyne Magistrates' Court [2010 EWHC 935 (Admin) (30 April 2010) This was an application for judicial review the recently retired Chief Constable of Northumbria Police, who sought to challenge various decisions of District Judge (Magistrates' Court culminating in his pursuant to section 51 of the Crime and Disorder Act 1998 to send the Chief Constable for trial at the Crown Court for an offence of unlawfully imprisoning one Simon Jason Price between 24 and 27 September 2009.

"So far as is material for present purposes the relevant legal principles can be summarised in the following incontestable propositions:

(i) The decision of a magistrate to issue a summons involves the exercise of a judicial function, from which it follows that a magistrates' court has a discretion to refuse to issue a summons where the proceedings would be vexatious, improper or for some other reason an abuse of the process of the court: see for recent statements of the principles R v Belmarsh Magistrates' Court ex p Watts [1999] 2 Cr App R 188 at page 195 and R (Mayor & Burgesses of London Borough of Newham) v Stratford Magistrates' Court [2004] EWHC 2506 (Admin) at paras [3], [15]-[16].
(ii) It is an abuse of the process to issue proceedings with an ulterior motive, for example with a view to the prosecutor clearing his name rather than bringing alleged criminals to justice: ex p Watts at page 199.
(iii) If the magistrates' court would have had power to refuse to issue a summons on the ground that the proceedings were vexatious or an abuse of the process, then the court equally has jurisdiction to stay the proceedings at a later stage: ex p Watts at page 196.
(iv) The duty of the court under section 51 of the 1998 Act to send a case to the Crown Court does not preclude it from exercising its jurisdiction to stay proceedings as an abuse of the process, though it will very rarely be appropriate to do so: R (Salubi and another) v Bow Street Magistrates' Court etc [2002] EWHC 919 (Admin), [2002] 2 Cr App R 40 at para [20]."
Paul v Humberside Police (17 March 2004)

In Paul v Humberside Police [2004] EWCA Civ 308 (17 March 2004) This was a claim re false imprisonment and malicious prosecution, and at the centre of this appeal was a challenge to a ruling made by the judge at the end of the trial to the effect that there were no factual issues to be left to the jury to decide. The Court of Appeal pointed out that the case of Gibbs and Others v. John Mitchell Rea (Cayman Islands) [1998] UKPC 3 (29th January, 1998) provided "a useful reminder of the fact that a claimant cannot ordinarily be expected to produce direct evidence on these matters [namely lack of reasonable and probable cause and malice]" and only "slight" evidence of malice is required in order to justify leaving the issue to the jury.

L, In re (25th June, 1998)

L, In re [1998] UKHL 24; [1999] AC 458; [1998] 3 All ER 289; [1998] 3 WLR 107; [1998] 2 FLR 550; [1998] 2 FCR 501; [1998] Fam Law 592 (25th June, 1998) [T]he requirement that, for the tort of false imprisonment to be committed, there must in fact be a complete deprivation of, or restraint upon, the plaintiff's liberty. On this the law is clear. As Atkin L.J. said in Meering v. Grahame-White Aviation Co. Ltd (1919) 122 L.T. 44, 54, "any restraint within defined bounds which is a restraint in fact may be an imprisonment." Furthermore, it is well settled that the deprivation of liberty must be actual, rather than potential. Thus in Syed Mahamad Yusuf-ud-Din v. Secretary of State for India (1903) 19 T.L.R. 496, 497, Lord Macnaghten said that: "Nothing short of actual detention and complete loss of freedom would support an action for false imprisonment." And in Meering, at pp. 54-55, Atkin L.J. was careful to draw a distinction between restraint upon the plaintiff's liberty which is conditional upon his seeking to exercise his freedom (which would not amount to false imprisonment), and an actual restraint upon his liberty, as where the defendant decided to restrain the plaintiff within a room and placed a policeman outside the door to stop him leaving (which would amount to false imprisonment). L, In re [1997] EWCA Civ 2879 (02 December 1997)

Murray v Ministry of Defence (Northern Ireland) UKHL 13 (25 May 1988)

Murray v Ministry of Defence (Northern Ireland) [1988] UKHL 13 (25 May 1988)

In Meering v. Grahame-White Aviation Co. Ltd., the plaintiff's employers, who suspected him of theft, sent two of the works police to bring himin for questioning at the company's offices. He was taken to a waiting-room where he said that if he was not told why he was there he would leave. He was told he was wanted for the purpose of making inquiries about things that had been stolen and he was wanted to give evidence; he then agreed to stay. Unknown to the plaintiff, the works police had been instructed not to let him leave the waiting-room until the Metropolitan Police arrived. The works police therefore remained outside the waiting-room and would not have allowed the plaintiff to leave until he was handed over to the Metropolitan Police, who subsequently arrested him. The question for the Court of Appeal was whether on this evidence the plaintiff was falsely imprisoned during the hour he was in the waiting-room or whether there could be no "imprisonment" sufficient to found a civil action unless the plaintiff was aware of the restraint on his liberty. Atkin L.J. said, at pp. 53-54 "It appears to me that a person could be imprisoned without his knowing it. I think a person can be imprisoned while he is asleep, while he is in. a state of drunkenness, while he is unconscious, and while he is a lunatic. Those are cases where it seems to me that the person might properly complain if he were imprisoned, though the imprisonment began and ceased while he was in that state. Of course, the damages might be diminished and would be affected by the question whether he was conscious of it or not. So a man might in fact, to my mind, be imprisoned by having the key of a door turned against him so that he is imprisoned in a room in fact although he does not know that the key has been turned. It may be that he is being detained in that room by persons who are anxious to make him believe that he is not in fact being imprisoned, and at the same time his captors outside that room may be boasting to persons that he is imprisoned, and it seems to me that if we were to take this case as an instance supposing it could be proved that Prudence had said while the plaintiff was waiting: 'I have got him detained there waiting for the detective to come in and take him to prison' - it appears to me that that would be evidence of imprisonment. It is quite unnecessary to go on to show that in fact the man knew that he was imprisoned. If a man can be imprisoned by having the key turned upon him without his knowledge, so he can be imprisoned if, instead of a lock and key or bolts and bars, he is prevented from, in fact, exercising his liberty by guards and warders or policemen. They serve the same purpose. Therefore it appears to me to be a question of fact. It is true that in all cases of imprisonment so far as the law of civil liability is concerned that 'stone walls do not a prison make,' in the sense that they are not the only form of imprisonment, but any restraint within defined bounds which is a restraint in fact may be an imprisonment."

JE v DE & Ors (29 December 2006)

JE v DE & Ors [2006] EWHC 3459 (Fam) (29 December 2006) 14.It is important to note at the outset that "deprivation of liberty" as that concept is enshrined in Article 5(1) has an autonomous meaning. Although there is plainly an overlap between the Convention concept of someone being "deprived of his liberty" and the concept of "imprisonment" in the context of the common law tort of false imprisonment, and although, no doubt, in many instances both consequences will flow from the same state of affairs, it is possible for someone to be "deprived of his liberty" within the meaning of Article 5(1) even though we might not hold that he is being "imprisoned" for the purposes of the tort. As the Strasbourg court said in HL v United Kingdom [2004] 40 EHRR 761 at para [90]:

"Although this Court will have regard to the domestic courts' related findings of fact, it does not consider itself constrained by their legal conclusions as to whether the applicant was detained or not, not least because the House of Lords considered the question from the point of view of the tort of false imprisonment rather than the Convention concept of "deprivation of liberty" in art 5(1), the criteria for assessing those domestic and Convention issues being different."
R v Deputy Governor of Parkhurst Prison Ex p Hague (24 July 1991)

R v Deputy Governor of Parkhurst Prison Ex p Hague [1990] UKHL 8 (24 July 1991)

Police detention

Where a constable has reasonable grounds for suspecting that an indictable offence has been committed but does not have reasonable grounds for suspecting the arrested person to be guilty of an offence (objectively held) then the detention of that person is unlawful. The detention remains unlawful unless or until the detention is made lawful by further information or evidence being obtained providing the necessary reasonable grounds for suspecting the person to be guilty of the offence for which he was purportedly arrested. In such a case the arrest would be premature. See: Shaaban bin Hussien v Chong Fook Kam [1969] 3 All ER 1626, [1970] AC 942, [1970] 2 WLR 441, PC.

Section 37(1)(b) of PACE requires a police station custody officer, before whom a person arrested for an offence without a warrant or under a warrant backed for bail is brought, to determine whether there is sufficient evidence to charge him with the offence for which he has been arrested, and provides that he may detain him at the station for such period as is necessary to enable him to do so.

A custody officer is entitled to assume that the arrest of a person was lawful. See: DPP v L (1999) Crim. LR 752.

Section 37(2) of PACE requires the custody officer to release an arrested person if he determines that there is insufficient evidence to charge him with the offence for which he was arrested, unless he has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.

Section 37(3) provides: If the custody officer has reasonable grounds for so believing, he may authorise the person arrested to be kept in police detention.

A genuine and bona fide belief in the necessity of continued detention on the part of the custody officer is not enough. Consistently with Article 5(1)(c) of the Convention, the test is an objective one, namely whether he had reasonable grounds for such belief; see Murray v United Kingdom (1994) 19 EHRR 193, para 50, and Fox, Campbell and Harltey v United Kingdom (1991) 13 EHRR157, at paragraphs 31-32.

Where the custody officer who authorises the detention of person and fails to comply with section 37(2) and (3) of PACE because he could not have reasonably believed that detention was "necessary" as required by those provisions, and that, in any event, he fails, in doing so, properly or at all to exercise whatever discretion is given to him by section 37(3) the persons detention is unlawful.

Despite the slightly narrower wording of Article 5(1)(c), it does not expressly provide for detention for the purpose of obtaining evidence, the European Court has held that, provided there are reasonable grounds for suspecting that an offence has been or will be committed, a person may be arrested and detained in good faith for questioning in order to obtain evidence; see

False imprisonment HMP

HXA v The Home Office (QB) (21 May 2010)

HXA v The Home Office [2010] EWHC 1177 (QB) (21 May 2010) This claim raises the legality of the Claimant's administrative detention, by the Defendant Secretary of State purportedly exercising his immigration powers under Schedule 3 to the Immigration Act 1971, as applied by section 5(5) of the Act, consequent upon service upon the claimant of a notice of a decision to make a deportation order and pending the making of a deportation order. Under section 3(5)(a) of the 1971 Act a person who is not a British citizen is liable to deportation from the United Kingdom. Held: For the reasons stated the entirety of the detention in this case was unlawful and the Claimant succeeded on liability though if the only basis upon which the claimant could succeed were by reference to the Hardial Singh principles relating to due diligence, then the finding of unlawful detention would be restricted to one of five months. R. -v- Durham Prison Governor, ex parte Hardial Singh [1984] 1 WLR 704

"first of all it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and in the other case pending his removal. It cannot be used for any other purpose. Secondly as the power is given to enable the machinery of deportation to be carried out. I regard the power of detention as being implicitly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to exercise his power of detention. In addition I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that steps are taken to ensure the removal of the individual within a reasonable time."
Governor of Her Majesty's Prison Brockhill Ex Parte Evans, R v. UKHL (27th July, 2000)

Governor of Her Majesty's Prison Brockhill Ex Parte Evans, R v. [2000] UKHL 48; [2000] 3 WLR 843 (27th July, 2000)

Evans, R (on the application of) v Governor HM Prison Brockhill [1998] EWCA Civ 1042 (19 June 1998) The appellant was released 59 days later than she should have been released. It was for those 59 days additional imprisonment that she claimed damages. The Court of Appeal by a majority allowed her appeal on liability and increased the judge's assessment of damages from £2,000 to £5,000

Governor of Her Majesty's Prison Brockhill Ex Parte Evans, R v. [2000] UKHL 48; [2000] 3 WLR 843 (27th July, 2000) the Court of Appeal’s increase in the sum of damages should be upheld by the House of Lords.

Evans, R (on the application of) v Governor HM Prison Brockhill [1998] EWCA Civ 1042 (19 June 1998) concerned a short-term prisoner's detention beyond the statutory release date because of an erroneous calculation of the release date. The Court of Appeal found detention beyond that statutory release date to be unlawful and awarded damages for false imprisonment.

Lord Justice Roch noted that, under section 42of the 1991 Act, additional days could be added on to the core period foreseen by section 33(1) so that the date therein envisaged was not absolute, but was a date that could be affected by decisions made by the governor under section 42 of the 1991 Act.

Lord Justice Judge pointed out that:

“The discretionary aspects of earlier arrangements for remission and parole were altered by the [1991 Act]. As a 'short-term' prisoner within section 33(5) of the [1991 Act], subject to an award of additional days in custody for disciplinary offences, the appellant was entitled to be released on licence as soon as she had served one half of the sentence imposed by the court. Therefore authorities such as Morris and Winter [1930] 1 KB 243, based on the principle that there was no entitlement to remission, cease to be relevant ...
R v Deputy Governor of Parkhurst Prison Ex p Hague] UKHL 8 (24 July 1991)

R v Deputy Governor of Parkhurst Prison Ex p Hague [1990] UKHL 8 (24 July 1991) These appeals raise the question whether a convicted prisoner who, in the course of serving his sentence, has been treated in a way which the rules do not permit has in any and what circumstances a cause of action in private law sounding in damages against the prison governor or the Home Office on the ground either of a breach of statutory duty or of the tort of false imprisonment.

To summarise the conclusion on these appeals:

No action of damages lies in respect of a breach of the Prison Rules 1964.
No action of damages for false imprisonment lies against the Secretary of State or the Governor of a prison either on the ground of unlawful deprivation of residual liberty, or on the ground of subjection to intolerable conditions

Section 12 Prison Act 1952


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