‘False imprisonment involves an act of the defendant which directly and intentionally (or possibly negligently) causes the confinement of the claimant within an area delimited by the defendant.’ R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4 at [24] (Lady Hale, quoting from Witting, Street on Torts 15th ed (2018) at 259).
There is more to false imprisonment than merely being prevented from going where one pleases: ‘[t]he essence of imprisonment is being made to stay in a particular place by another person’ (R (Jalloh) v Secretary of State for the Home Department [2020] UKSC 4 at [24] (Lady Hale)).
C wanted to use the footpath on Hammersmith Bridge in London to cross to the south bank of the River Thames. The footpath had however been enclosed, and seating installed for the benefit of spectators of a rowing event. C could have crossed the bridge via the carriageway or alternatively he could have retraced his steps. C however attempted to push his way past two policemen, and he was arrested. C brought an action for wrongful arrest and one issue for the court was whether C had been falsely imprisoned before he had pushed the policemen. A majority of the Court of Queen’s Bench held that C had not been imprisoned.
It might be thought that it was fatal to Bird’s claim that was able to use the carriageway to cross the bridge. But as Rogers notes (The Law of Tort, 2nd edn, 1994, 151) it is clear that ‘[i]f Bird had not been able to cross Hammersmith Bridge at all there would still have been no false imprisonment for not only could he roam through all the city on the north bank of the river but he could go to another bridge and use that’. This is clear from the judgments themselves: ‘imprisonment is . . . a total restraint of the liberty of the person, for however short a time, and not a partial obstruction of his will’ (Patteson J at 752). In similar vein, Coleridge J said (at 744) that ‘imprisonment is something more than the mere loss of [the freedom to be able to go wherever one pleases]; it includes the notion of restraint within some limits defined by a will or power exterior to our own’.
In Wright v Wilson (1699) 1 Ld Raym 739 Holt CJ held that where C is in a room with two exits, one of which is blocked by D, C has no claim against D for false imprisonment even though using the other exit would involve C in trespassing on the neighbouring premises.
L was a non-verbal, autistic adult male with complex needs who lacked capacity to consent to medical treatment. One day while at a day care centre, L became very agitated. The staff at the centre, being concerned for L’s wellbeing but unable to contact the paid carers with whom L lived, called a GP. The GP administered a sedative to L who was then taken by ambulance to the accident and emergency department at D’s hospital. From there L was transferred to the hospital’s behavioural unit where he had previously been cared for as an inpatient. A consultant at the unit considered that L ought to be re-admitted as an inpatient. As L was compliant and was not resisting re-admission, the consultant decided it was not necessary to apply for an order under s 3 of the Mental Health Act 1983 for L’s compulsory detention, opting instead to admit L as an informal patient under s 131 of the Act. While L was kept in an unlocked ward in the hospital, he was regularly sedated and kept under close observation. Had L attempted to leave, he would have been compulsorily detained under s 3. L’s carers, who were not permitted to visit him, brought an action, inter alia, for damages for false imprisonment. The judge rejected the claim on the basis that L had been informally admitted and that D could rely on the defence of necessity.
The CA held that L had been unlawfully detained, allowed his appeal and awarded him nominal damages. Lord Woolf MR, delivering the judgment of the Court, said (at 465) that ‘a person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him from leaving’. Applying this to the facts, the CA held that L had been detained. The CA further held that s 131 only applied to patients who had the capacity to, and did, consent to being detained and did not apply to those who did not dissent. As such, L’s detention could not be justified.
Following the CA’s decision, L was immediately detained under s 5(2) and subsequently detained for treatment under s 3.
In due course, the House of Lords heard and allowed D’s appeal. The House of Lords unanimously held that s 131(1) applied to both capable consenting patients and incapable non-dissenting patients. As such, all five members of the House of Lords held that L’s admission and treatment had been lawful under the common law doctrine of necessity.
Lords Goff, Lloyd and Hope held that L had not been detained: L had not been kept in a locked ward and the fact that the consultant might have had L compulsorily detained did not mean that he was detained in fact in the meantime. Lords Nolan and Steyn dissented on this point.
‘The suggestion that L was free to go is a fairy tale . . . In my view L was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty.’ (Lord Steyn at 495).
It seems that the confinement point in Bournewood might today be decided as per the minority. In the Jalloh case, Lady Hale said ([2020] UKSC 4 at [23]) that it was ‘not easy to grasp [the majority’s] rationale [in Bournewood]’.
C sought damages for false imprisonment by way of judicial review proceedings challenging the legality of a curfew imposed on him under the Immigration Act 1971 pending his deportation following his conviction for various offences. Under the terms of the curfew, C was required to remain at his home address between the hours of 11 pm and 7 am every day. He wore a tag which was electronically monitored. He was told that should he break the terms of his curfew, he would be liable to a fine and/or imprisonment. The curfew was in place between February 2014 and July 2016. On a substantial number of occasions C left his home without permission. Following the proceedings, the court ordered the curfew to be lifted. Subsequently, Lewis J held that the curfew had amounted to false imprisonment. C was awarded £4,000 in damages. The CA dismissed D’s appeal and C’s cross-appeal on quantum. The Supreme Court dismissed D’s further appeal.
’24. . . . The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They could be physical barriers, such as locks and bars. They could be physical people, such as guards who would physically prevent the person leaving if he tried to do so. They could also be threats, whether of force or of legal process . . . The point is that the person is obliged to stay where he is ordered to stay whether he wants to do so or not.
25. In this case there is no doubt that the defendant defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the defendant’s permission . . .
26. The fact that the claimant did from time to time ignore his curfew for reasons that seemed good to him makes no difference to his situation while he was obeying it. Like the prisoner who goes absent from his open prison . . . he is not imprisoned while he is away. But he is imprisoned while he is where the defendant wants him to be.
27. There is, of course, a crucial difference between voluntary compliance with an instruction and enforced compliance with that instruction . . . There can be no doubt that the claimant’s compliance was enforced. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a £5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the state, which was claiming to have the power to do this. The idea that the claimant was a free agent, able to come and go as he pleased, is completely unreal.’ (Lady Hale).
As with all forms of trespass, for liability to arise, there must have been a voluntary act by D.
As part of his daily prison routine, C would be let out of his cell at 8.00 am. He was permitted to be out of his cell for some six hours in all each day. Following a dispute over prisnon officers’ pay, the D union called a national strike. Due to a shortage of prison officers on the day of the strike, the governor issued an order at 9.30 am that prisoners would have to remain in their cells for the day. C brought a claim against D for false imprisonment on the ground that the strike by the prison officers in breach of their contracts of employment resulted in his wrongful confinement in his cell for the whole day. The judge awarded C damages of £5 finding that C had greatly exaggerated the distress he suffered.
The CA (Lord Neuberger MR and Smith LJ, Sullivan LJ dissenting) allowed D’s appeal, holding, inter alia, that the mere failure of the prison officers to perform their contractual duties involved no positive action on their part.
‘At least as a general principle, defendants are not to be held liable in tort for the results of their inaction, in the absence of a specific duty to act, a duty which would normally arise out of the particular relationship between the claimant and the defendant.’ Lord Neuberger MR at [21].
In Iqbal, C’s complaint was really about what the officers had not done, ie released him from his cell, rather than what they had done. In other words, the complaint was not that the prison officers had locked him up, it was that they had failed to let him out. This may provide an alternative explanation for the outcomes in the next two cases:
C, a miner, descended into D’s pit at 9.30 am for the start of his shift. He was due to return to the surface at the end of his shift at 4.00 pm. D was instructed to carry out certain work but, in breach of contract, he refused to do so. At 11.00 am he asked to be taken back up to the surface. D refused and C was not taken up until 1.30 pm. The House of Lords held that C had no claim for false imprisonment. Under the terms of his contract, C had had no right to be brought back to the surface until 4.00 pm. Viscount Haldane LC said that even if the employer had been motivated by a desire to punish C for his refusal to work, C had no claim for false imprisonment. C had had no right to be brought back to the surface on demand.
D operated a ferry between Sydney and Balmain. On the Sydney side, a sign above the entrance to D’s wharf stated that a fee of one penny had to be paid on entering or leaving the wharf, whether the customer had travelled by ferry or not. No charge was made at the Balmain side. C entered the wharf on the Sydney side by the entry turnstile paying one penny. He discovered that he had just missed a ferry and, unwilling to wait 20 minutes for another one, decided to leave. He refused to pay another penny and when he tried to force his way out by the exit turnstile, he was forcibly restrained by D’s employees. Subsequently C did manage to leave without paying. He brought a claim for assault and false imprisonment. At the trial of his action for false imprisonment, the judge held that there was no evidence that C had known of the notice when he entered the wharf and a jury awarded C damages of £100. The High Court of Australia allowed D’s appeal, holding that C had been aware of the terms of the notice and that D’s actions had been authorised by the terms of the notice. The Privy Council dismissed C’s appeal. Lord Loreburn LC said that C’s claim failed whether or not he had been aware of the notice.
‘[I]t is clear to their Lordships that there was no false imprisonment at all. The plaintiff was merely called upon to leave the wharf in the way in which he contracted to leave it. There is no law requiring the defendants to make the exit from their premises gratuitous to people who come there upon a definite contract which involves their leaving the wharf by another way; and the defendants were entitled to resist a forcible passage through their turnstile.
The question whether the notice which was affixed to these premises was brought home to the knowledge of the plaintiff is immaterial, because the notice itself is immaterial.
When the plaintiff entered the defendants’ premises there was nothing agreed as to the terms on which he might go back, because neither party contemplated his going back. When he desired to do so the defendants were entitled to impose a reasonable condition before allowing him to pass through their turnstile from a place to which he had gone of his own free will. The payment of a penny was a quite fair condition, and if he did not choose to comply with it the defendants were not bound to let him through. He could proceed on the journey he had contracted for.’ (Lord Loreburn LC at 299-300).
The claim for false imprisonment in Iqbal failed on another ground: while the prison officers’ strike action was a cause of the prisoners being locked in their cells, it was the governor’s decision to keep the prisoners locked up that was the direct and immediate cause.
In Jalloh, Lady Hale was content to adopt the definition of false imprisonment which envisages that the tort may be committed carelessly. However, in Iqbal, Smith LJ thought that not only must the act that brings about the confinement be deliberate but, further, there must be an intention on the part of the defendant to bring about the confinement.
‘. . . the claimant must show not merely an intentional act . . . but also an intention to deprive the claimant of his liberty. I can illustrate the point as follows. If a security guard in an office block locks the door to the claimant’s room believing that the claimant has gone home for the night and not realising that he is in fact still inside the room, he has committed a deliberate act. However, he did not intend to confine the claimant. He may well be guilty of negligence because he did not check whether the room was empty but he would not be guilty of the intentional tort of false imprisonment.
How far must the claimant go in proving intent? Does he need to show the defendant positively wished to imprison him or is it sufficient if he shows that the defendant foresaw that imprisonment would be the consequence of his action? Is recklessness as to the consequence sufficient? . . . I would hold that, if the defendant realises that the likely consequence of his act or omission will be that the claimant is imprisoned and carries on with that act . . . regardless of that likely consequence, that will amount to false imprisonment, provided of course that the other requirements are satisfied.’ (Smith LJ at [72]-[73]).
This approach may be contrasted with Ralph Gibson LJ’s statement in Weldon v Home Office [1992] 1 AC 58, 135 that ‘[t]he intention necessary for commission of the tort is intentionally to do the act which causes the imprisonment.’
While there is some authority that liability for false imprisonment will not arise where C was unaware of her confinement, the better view is that such a factor should go to quantum of damages and not liberty (see, eg, Murray v Ministry of Defence [1988] 1 WLR 692, 701 (Lord Griffiths)). In Iqbal, Smith LJ thought that if C had been asleep for the period of confinement he would still have been entitled to damages, perhaps a nominal award of £5.
S 69 of the Senior Courts Act 1981 provides that where an action in the Queen’s Bench Division of the High Court includes a claim for false imprisonment the action shall be tried with a jury. Note that limited qualifications to the right exist. Similar provision is made for trials in the County Court: see County Courts Act 1984, s 66(3).
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