False Imprisonment
Nature of False Imprisonment
A person who causes or assist in the continuance of a confinement may be liable for the tort of false imprisonment. False imprisonment is a detention of a person against his will. Actual restraint is not necessary, provided the victim believes he cannot escape. The victim need not suffer damage or an unreasonable humiliation in escaping and will be regarded as restrained if he would be obliged to do so.
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.
False imprisonment is the unlawful restraint of personal liberty. The claimant’s freedom must be confined in all directions.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 is some such circumstances.
False imprisonment may arise where 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.
A lawful arrest is a defence to false imprisonment. If the arrest is not strictly lawful, it would constitute false imprisonment for which the detained person can claim compensation.
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 larger area. He may be confined in an open area, from which he is restrained from leaving.
Where 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 imprisonment 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.
Arrest and Fundamental Right to Liberty
False imprisonment protects the fundamental freedom of liberty. It protects it against intrusion by both private and by 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. The criminal law provides a wide range of Garda powers, under which a person might be arrested and detained.
There are numerous powers of arrest in statute. 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 developed initially in the context of anti-terrorism legislation, but is 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.
Defences to Trespass to the Person
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.
An implied consent will generally be negated by an express retraction. The circumstances may be such that withdrawal of consent may not give rise to an immediate termination of the trespass. A reasonable time may be required.
Issues of consent arises in the context of sports. A certain level of contact will be necessarily implied. Consent to a certain level of contact will necessarily be implied in some sports. However, there will be implied limits to the consent.
A person may commit an assault or battery by going wholly and significantly outside the scope of the sport’s rules. A person may be deemed to consent to minor infringements of the sport’s rules.
Consent Issues
Consent may arise from a course of previous conduct. Equally, the absence of consent may be inferred from an earlier objection.
Where consent is procured by fraud, duress or by unlawful means, it may be negated. Consent induced by fear is negated. It is likely that duress requires fear of something immediate that is implied or is expressly threatened rather, than duress and pressure arising from circumstances, including economics circumstances.
A distinction has been drawn between a misrepresentation as to the nature of the act and as to incidental and essential matters. Misrepresentation regarding incidental matters does not negate consent.
The Non-Fatal Offences against the Person Act 1997 provides that the consent of a minor who has attained 16 years, to any surgical, medical or dental treatment which would otherwise constitute a trespass shall be effective as if he was of full age and the consent of his guardian is not required.
In the case of younger children, it would appear that parental or guardian consent is required. There are limits to the extent to which parents or guardians may consent to or withhold consent when this is not in the child’s interest.
A parent’s consent is required in the case of younger infants and children. However, difficult questions arise in relation to consent and the role of parents where children are approaching or in adolescence. As children become more mature, the pre-eminence of the parent’s role gradually diminishes.
Other Defences
Self-defence is a defence to trespass and assault. Assault or battery committed in the course of defending oneself is lawful. The force used must be reasonable and proportionate in the circumstances. The Criminal Law (Defence and the Dwelling) Act provides that a person need not retreat in his own dwelling house, in the exercise of self-defence. It covers the defence of other persons and property.
There is generally a right to defend third parties. It would appear that the modern position is that any person may defend another who is in danger, by using reasonable force against unlawful force.
Necessity may be a defence. The necessity must be real and immediate. What is done must be reasonable in the circumstances. Necessity is unlikely to be a defence to serious assaults, killing and homicide.
At common law, a parent had a right to exercise reasonable chastisement of his child. This might involve the application of force or confinemen.t, provided that it was not excessive in the circumstances. The defence of reasonable chastisement has been found to be inconsistent with the European Convention on Human Rights.
Formerly, teachers being in loco parentis had a right of reasonable chastisement. The defence was removed by the section 24 of the Non-Fatal Offences against the Person Act 1997.
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 so more on conviction on indictment. There are numerous other powers of arrest, in relation less serious offences