False Imprisonment
Overview
False imprisonment is an unlawful restraint on personal liberty. The person must be bound within limited confines. He must be restrained in all directions.
The extent of confinement may vary in the circumstances. It may be, for example, in a room in a building or in a fenced open space.
It appears that the person concerned must be aware of the confinement. There is no liability if the claimant is sleeping or lacks mental capacity. However, some cases appear to allow for the possibility of liability in such cases in some circumstances.
Imprisonment may be physical or psychological. The barriers need not be physical. It is sufficient that a person fears that force would be used to confine him if he tried to leave or escape. A person is not required to subject himself to risk danger, risk injury or undergo significant humiliation, such as walking naked, in order to escape confinement.
It appears that a person may be imprisoned when another refuses wrongfully to release a person who has come onto his property, even accidentally or as a trespasser. It has been held that where employees were locked into and not released from a factory or workplace at the end of the working day, there was false imprisonment.
Nature of False Imprisonment
A person who causes or assists in the continuance of confinement may be liable for the tort of false imprisonment. False imprisonment is a detention of a person against his will.
The imprisonment may be physical or psychological. If a person fears that force would be used if he tried to escape, then this can constitute false imprisonment. The victim need not suffer damage or unreasonable humiliation in escaping and will be regarded as restrained if he would be obliged to do so.
Actual restraint is not necessary, provided the victim believes he cannot escape. The person concerned must be aware of the confinement. This will not be the case if the victim is sleeping or mentally handicapped. However, there are cases which allow for the possibility of false imprisonment in some such circumstances.
False imprisonment may arise when somebody fails or refuses to release a person who has come onto his property, even accidentally. If customers or employees are on business premises, and the security gates are not opened when they expect to leave, this may constitute false imprisonment.
Constraint and Confinement
The confinement and restraint may be effected through psychological methods, through threats to the person concerned or through any other mechanism whereby a person is put in fear. Although the matter is not clear from doubt, it appears a person may be confined without being aware of the confinement, as such, for example, where a child is imprisoned.
False imprisonment requires confinement within bounds. It is not enough that a person is required to take or is blocked off from taking a particular route. However, a person may be falsely imprisoned, where he cannot leave a place without undergoing humiliation.
The extent of restraint and liberty required may vary with the circumstances. A person may be confined in a room, a car, a house or a larger area. He may be confined in an open area, from which he is restrained from leaving.
When a person becomes restrained in a place, it may be false imprisonment by the person in control of that place to fail to release him if that person has caused the person to be in that situation. Where the person has become imprisoned in circumstances not caused by the person concerned, failure to release would not usually constitute false imprisonment.
Where a person consents to be confined, then the failure to release him at the end of the agreed period would constitute false imprisonment. For example, where factory gates were locked during certain hours but should have been unlocked after that, then the failure to open may constitute false imprisonment.
Lawful Arrest
The exercise of lawful authority by the police and other officials with statutory power may permit what would otherwise constitute a trespass by way of assault, battery and false imprisonment. The Gardai have a right to arrest without warrant in the case of arrestable offences, which are generally offences that carry a punishment of five years or more on conviction on indictment. There are numerous other powers of arrest in relation to less serious offences.
There are numerous powers of arrest in statutes. Powers may be conferred on Gardai and other public officials. Arrest in a dwelling house normally requires a warrant. A warrant may be necessary or desirable in many other circumstances. Arrest in breach or in excess of the powers conferred is likely to constitute a trespass.
Historically, the sole purpose of arrest was to secure a person’s attendance in court, thought taking security by way of bail or other surety. Arrest and detention for questioning were developed initially in the context of anti-terrorism legislation but are now available for all serious offences. It is subject to detailed requirements and protections.
A person who is sentenced to lawful imprisonment or custody may be incarcerated and restrained. Persons suffering from serious mental illness who pose a danger to themselves and others may be detained under mental health legislation. Children may be detained on certain conditions under the Childrens Act.
Wrongful Arrest and Detention
A lawful arrest is a defence to false imprisonment. If the arrest is not lawful, it will constitute false imprisonment. It may also arise where a private person wrongfully exercises a common law power of arrest.
False imprisonment protects the fundamental freedom of liberty. It protects against intrusion by both private persons and the State. The unlawful restraint of liberty by State agents may constitute a breach of constitutional rights.
A person may be falsely imprisoned by being wrongfully arrested. Many false imprisonment claims raise issues of lawful arrest and detention. Criminal law provides a wide range of Garda powers under which a person might be arrested and detained.
The Gardai and other public authorities may be liable for false imprisonment, where they arrest or detain the claimant without or in excess of statutory authority. This can raise complex issues regarding the extent of statutory powers, which themselves are subject to constitutional limitations concerning the deprivation of liberty.
Consent
Consent will constitute a defence to false imprisonment. It may constitute a defence to assault, battery and false imprisonment. It may be explicit or implied.
The context may readily show consent, such as in the case of minor touching, contact or even minor restraints of liberty. The more significant and less “technical” the battery, assault or false imprisonment, the more explicit the consent that will be required.
Implied consent will generally be negated by an express retraction. The circumstances may be such that withdrawal of consent may not give rise to immediate termination of the trespass. A reasonable time may be required.
Damages Cases
In GE v Commissioner of An Garda Siochana [2021] IECA 113, the question of whether damages should be nominal where there was an unlawful confinement which could have been lawful
“there is no rigid principle of Irish law that extinguishes the right of a person who has been unlawfully detained to compensatory damages by reference to a rule of ‘but for’ causation of the kind that has been recognised in other jurisdictions …”.
“The tort of false imprisonment as part of the common law of the State at the time of the adoption of the Constitution was a cause of action in which compensatory damages were awarded for an unlawful deprivation of liberty. The law in this jurisdiction does not contemplate a bright line rule precluding a person who could have been detained lawfully when they were not, from obtaining by reason of that fact alone any award of general damages. It is wrong to view compensatory damages for false imprisonment as being merely for loss of liberty and associated injury, without acknowledging the consequence of the fact that they are triggered where the containment is unlawful. The tort is the response of private law to the insult caused by that illegality. The award of damages reflected that. It is not open to the courts to now retheorise that cause of action.”
Arrest Case
In Reid v Commissioner of An Garda Síochána [2014] IEHC 246 a delay of eight months in executing an arrest warrant was not considered excessive and unlawful,
“It is clearly the case that such a warrant is a command by the Court to the gardaí to arrest the person named thereon …. However, …. the issuing of such a warrant need not trigger a national manhunt. There are thousands of such warrants issued every year, and around the country there are warrant officers, just like Garda Joyce herein, whose sole function is the execution of warrants. No legal basis for unlawful arrest arises under this heading.”
“Outside the flat at the time, the gardaí were present with a bench warrant for the plaintiff who lived in that apartment and who was, in fact, present in it. By definition, the bench warrant was in respect of a fugitive from justice i.e. a person in flight from the law. Were the gardaí to tamely withdraw? Hardly. Did they do so, they would have been ignoring a clear command by the Court to arrest the person named on the warrant i.e. the plaintiff and bring him before the Court. In breaking into the apartment, on the plaintiffs own evidence, the gardaí were using the only means open to them to effect an entrance and execute the warrant. No legal basis for unlawful arrest arises in this regard.”
“Handcuffs should not be used unless reasonable in all the circumstances. It is for the gardaí present to decide whether to do so or not. See DPP v. Peter Cullen (Supreme Court.) 18th February, 2014. The circumstances are the critical test-context, as so often, is all-important. What were the circumstances here? The gardaí, to the best of their knowledge, were attempting to arrest a man in flight from the law. They were unaware of the mistaken identity when they handcuffed him. They only knew that he was the person named on the warrant. He admitted to be. Inklings or suspicions developed only later. He was, indisputably, the man described on the warrant. He had failed to answer their knock. In those circumstances, it cannot, in my judgment, be said that their handcuffing of him was an unreasonable use of force and it would not, in my opinion, be open to a jury to reasonably find otherwise.”
References and Sources
Irish Books
Tully Tort Law in Ireland 2014
McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
Quill Torts in Ireland 4ed 2014
Fahey Irish Tort Legislation 2015
Healy Principles of Irish Torts 2006
EU and UK Texts
Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
Deakin, S., A. Johnson and B. Markesinis Markesinis and Deakin’s tort law 7ed 2012
Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
Charlesworth & Percy on Negligence 14ed 2019