FALSE IMPRISONMENT. Nigel Joseph Ley, Barrister J O R D A N S 2001

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1 FALSE IMPRISONMENT Nigel Joseph Ley, Barrister U J O R D A N S 2001

2 CONTENTS Preface Table of Cases Table of Statutes Table of Statutory Instruments Table of Other Material Table of Military Rules and Regulations Table of Abbreviations Page v xix xli lv lvii lix lxi Chapter 1 HISTORICAL BACKGROUND False imprisonment as a form of trespass Statutory innovations from Magna Carta to the Police and Criminal Evidence Act The present day 5 Chapter 2 WHAT AMOUNTS TO AN IMPRISONMENT AND THE MENS REA REQUIRED TO BE A TORTFEASOR The requisite restriction on the liberty of movement Consent Knowledge Malfeasance or nonfeasance and contractual obligations A change in the quality of the incarceration De minimis Excessive duration and trespass ab initio The mental element Causation Chapter 3 DEFENCES 3.1 Introduction 3.2 Consent 3.3 Necessity 3.4 Duress 3.5 Immunity 3.6 Lawful arrest and detention 3.7 The definition of an arrest 3.8 How an arrest is brought about 3.9 Surrender to police bail 3.10 Who can be arrested? 3.11 The location of the arrest and sanctuary 3.12 Information to be given on arrest

3 viii False Imprisonment 3.13 Detainees who are deaf or cannot speak English The correct legal reason Possession of drugs Additional requirements placed upon the police At the time of the arrest Traps for thieves which lock automatically Sufficiency of the evidence needed to prove that the requisite reasons were given 35 Chapter 4 SERIOUS AND OTHER ARRESTABLE OFFENCES Introduction The definition of an arrestable offence Customs and excise offences CEMA Alcoholic Liquor Duties Act Value Added Tax Act Finance Act Finance Act Certain offences under the Official Secrets Act Certain offences under OSA Offences under the Sexual Offences Act 1956, ss 22, Offences under the Theft Act 1968, ss 12(1), 25(1) Any offence under the Football (Offences) Act An offence under the Obscene Publications Act 1959, s An offence under the Protection of Children Act 1978, s An offence under CJPOA 1994, s An offence under the Public Order Act 1986, s An offence under CJPOA 1994, s An offence under the Prevention of Crime Act 1953, s 1(1) An offence under the Criminal Justice Act 1988, s 139(1) An offence under CJA 1988, s 139A(1), (2) An offence under the Protection from Harassment Act 1997, s 2 5S An offence under CJPOA 1994, s 60(8) (b) An offence under CDA 1998, s 32(1) An offence under FSA 1989, s 16(4) 54

4 Contents j x An offence under POA 1986, s 32(3) Inchoate offences Serious arrestable offences 54 Chapter 5 THE CITIZEN'S POWER OF ARREST WITHOUT A WARRANT Introduction The general rule: crimes within the jurisdiction Statutory exceptions: crimes outside the jurisdiction High treason and terrorism Offences at sea or by seamen Offences committed whilst in the service of Her Majesty Homicide Bigamy Offences against protected persons Offences in relation to nuclear material Causing nuclear explosions Sexual offences Perjury Conspiracy War crimes and landmines Fraud Offences on aircraft Prosecutions which can be brought only by the Law Officers or the Director of Public Prosecutions or other nominated people Public place Common law powers Treason Breach of the peace Definition When an arrest can be made A person unlawfully at large Statutory powers NineteenuVcentury statutes Unlawful Drilling Act Vagrancy Act Licensing Act Public Stores Act Twentieth-century pre-pace statutes Visiting Forces Act Army Act

5 5.6 False Imprisonment Conclusions Air Force Act 1955 Sexual Offences Act 1956 Naval Discipline Act 1957 Criminal Justice Act 1967 Theft Act 1978 Criminal Attempts Act 1981 PACE 1984 Twentieth-century post-pace statutes Criminal Attempts Act 1981 Reserve Forces Act Chapter 6 THE POWERS OF ARREST OF A CONSTABLE WITHOUT A WARRANT AND POWERS OF DETENTION FALLING SHORT OF AN ARREST Introduction Constables - who they are - and their territorial jurisdiction Irish, Scottish, Channel Island and foreign constables Constables in uniform Common law powers Abolition of pre-1984 statutory powers of arrest Present day powers of arrest Arrestable offences Breach of police bail Statutory powers of summary arrest not repealed by PACE Game Act Military Land Act Protection of Animals Act Emergency Powers Act Public Order Act Prison Act Visiting Forces Act Army Act Air Force Act Naval Discipline Act Street Offences Act Firearms Act Children and Young Persons Act Immigration Act Bail Act Criminal Law Act

6 Contents Animal Health Act Representation of the People Act Mental Health Act Repatriation of Prisoners Act Legislation passed since PACE The general arrest Commentary Sporting Events (Control of Alcohol etc) Act 1985 Public Order Act 1986 Road Traffic Act 1988 Football Spectators Act 1989 Prevention of Terrorism (Temporary Provisions) Act 1989 Criminal Justice (International Co-operation) Act 1990 Transport and Works Act 1992 Trade Union and Labour Relations Consolidation Act 1992 Asylum and Immigration Appeals Act 1993 Criminal Justice and Public Order Act 1994 Family Law Act 1996 Housing Act 1996 Reserve Forces Act 1996 Consumption of Alcohol (Young Persons) Act 1997 Crime (Sentences) Act 1997 Immigration and Asylum Act 1999 Terrorism Act 2000 conditions their definition Restriction of the exercise of the power of arrest The Codes of Practice Detain for questioning Other statutory powers Chapter 7 THE ROAD TRAFFIC ACT Introduction Driving Steering a vehicle Still driving 128

7 xii False Imprisonment 7.5 Death by dangerous driving: section Causing death by driving carelessly etc: section 3A Driving whilst unfit: section Attempts to drive - at common law Theactusreus The mensrva Impossibility Drugs Breathalyser offences: section The power of arrest When an arrest cannot be made The lawfulness of the breath test Commentary on section 6: Elements of breathalyser offences Require A breath test Definition Approved devices Their modus operandi Motor vehicle Danger to other road users: section 22A Driving whilst disqualified: section Summary 142 Chapter 8 REASONABLE SUSPICION AND BELIEF Introduction Mistakes of law and fact Subordinate legislation and directives of the European Union Suspicion Whose suspicion? The reasonable and unreasonable suspicion of the initiator of the arrest The most recent authorities - post Giving misleading information to the police Being unco-operative with the police The relevance of previous convictions Information received and informers Conflicting evidence The need to make further inquiries The results obtained from further inquiries Assault cases Drunken drivers Introduction Suspicion of driving Reasonable suspicion of alcohol consumption 159

8 Contents No reasonable suspicion of alcohol consumption Observed coming out of licensed premises Suspicion of unfitness to drive Suspicion of being involved in an accident causing injury Belief Conclusion Chapter 9 Chapter 10 OTHER GROUNDS THAT RENDER AN ARREST UNLAWFUL Trespass to land Statutory rights to enter Trespass to the person Finding of facts as to the cause of injury Wednesbury unreasonableness Holding charges LAWFUL DETENTION AFTER THE INITIAL ARREST Introduction Prior to the arrival at a police station At the police station The initial decision to detain Written records When to charge - sufficiency of the evidence Reviews and further detention Extended custody period Relevant time Release from custody No grounds to justify continuance After charge Unreasonable delay and lack of expedition on the part of the police in charging or releasing Breach of the rules laid down in Part IV of PACE 1984 Detention of those arrested under RTA 1988 Terrorists Location of actual detention Servicemen Visiting forces Chapter 11 THE ARMED FORCES Introduction Powers of detention 191

9 False Imprisonment The Customs legislation The Army, Navy and Air Force Acts The Army The Navy and Air Force Serviceman attached to another service The reserve forces and civilians Visiting forces Immunity from suit Military discipline Inconclusive House of Lords' cases Cases favouring immunity Cases against immunity - the seventeenth and eighteenth centuries The nineteenth century The twentieth century - pre-second World War cases Post-Second World War cases and the European Convention on Human Rights Decisions in other jurisdictions The defence of superior orders Decisions in the United States English decisions The twentieth century Inter arma silent leges Martial law Acts of State When actions can be brought during hostilities Cases arising out of the annexation of India and the Boer War Irish cases Conclusions After the cessation of hostilities Statutory immunity Summary 212 Chapter 12 THE POWERS OF CERTAIN SECTIONS OF THE CITIZENRY TO RESTRAIN THE FREEDOM OF MOVEMENT OF OTHERS Introduction County court bailiffs Officers of Her Majesty's Customs and Excise and others authorised by the Commissioners 213

10 Contents xv 12.4 Health authorities Immigration officers Inspectors appointed under the Animal Health Act 1981 ('AHA 1981') Inspectors of canals Landowners, their servants and owners of shooting rights London boroughs Local authorities Owners and captains of Merchant Navy ships and aeroplanes Parents and those in loco parentis Prison governors and warders The railways - those associated with them, including inspectors and employees The Secretary of State Sheriffs Water bailiffs Generally 229 Chapter 13 LIABILITY AS A TORTFEASOR Introduction Counselling and procuring Vicarious liability Chief officers of police and police authorities Judicial acts The applicant The judiciary Compliance with the orders made, and the warrants issued, by the judiciary What are warrants and when can they be issued? Where executed When a wrongly named person is arrested Necessity for possession of the warrant Obeying the terms of the warrant Backing of warrants Constables Protection Act Ministerial officers University policemen County court bailiffs and those assisting them Sheriffs Diplomats and members of international organisations 245

11 xvi False Imprisonment Chapter 14 REMEDIES FOR FALSE IMPRISONMENT Introduction Habeas corpus Damages General damages Definition Court of Appeal guidelines on quantum Applying the guidelines - arrests lasting no more than a day Juries Present-day awards compared with those awarded pre the Thompson case The guidelines - incarcerations lasting more than 24 hours Aggravated damages Definition The conduct of the defence in court Quantum Exemplary damages Their purpose and scope Judicial awards Juries Special damages Loss of earnings An overview of the level of damages recovered Settlements The Law Commission The claimant's conduct Nominal damages Detention only becomes unlawful because of a bonafide error on the part of the jailer The summing up to the jury Date for assessment of, and interest on, damages Conclusions and future developments Chapter 15 CIVIL ACTIONS FOR FALSE IMPRISONMENT 15.1 Pre-action discovery 15.2 Limitation 15.3 Foreign claimants 15.4 The pleadings Generally Damages 15.5 Summary judgment

12 Contents xvii Disclosure Public interest immunity Informers Settlements - statements in open court Want of prosecution and disobedience to court orders Mode of trial The importance of jury trials The making of the application for trial by jury Where a court need not order trial by jury Split trials Number of jurors Evidence The burden of proof Estoppel and the findings in a previous trial Police cautions The trial -judge and jury, their respective roles The summing up Costs Appeals Leave On fact On quantum 291 Chapter 16 THE CRIMINAL LAW Introduction The crime of false imprisonment Attempts PACE Sentencing 298 Chapter 17 HUMAN RIGHTS Introduction Article 5(1) Subparagraphs (a) to (f) - compatibility with domestic law Article 5(2) Article 5(3) Article 5(4) Article 5(5) The common law prior to October The common law from October The right to bring legal proceedings under the HRA

13 xviii False Imprisonment The Law Lords Bringing a claim under HRA Informers Public funding Damages 313 Chapter 18 CONCLUSION Powers of apprehension Imprisonment to enforce payment of debts The balance between authority and freedom 315 Appendix 1 ARRESTABLE OFFENCES 317 Offences involving damage to property 317 Offences of dishonesty 318 Drug offences (including alcohol-related offences) other than those involving motor vehicles 319 Homicide, offences involving a fatality (other than those arising out of road traffic accidents) and related offences 319 Offences involving insolvency and companies 320 Immigration offences 321 Offences involving motor vehicles 321 Sexual offences and offences against children and public decency 321 Treason and similar offences involving terrorism 322 Offences involving actual or threatened personal injury or firearms offences 323 Offences against public justice and corruption 326 Offences against public morality 326 Revenue offences 327 Appendix 2 CLAIM FORM 329 Index 331

Sergeants OSPRE Part 1 Statistics - Evidence

Sergeants OSPRE Part 1 Statistics - Evidence Topic 2009 2010 2011 2012 2013 Probability Rating 7 Question 6 Question 6 Question 5 Question 4 Question 5.6 Questions Grounds for Refusing Bail x2 Police Bail