False Imprisonment
Nigel Joseph Ley
1st Edition March 2001 £40
The police and other authorities have become ever more ready to
exercise their powers to detain suspected offenders. These powers are subject
to strict rules and restrictions and failure by the authorities to comply with
the correct procedure will usually entitle the detainee to a civil claim for
damages. The Human Rights Act 1998 grants victims. of arrest or detention in
contravention of Article 5 (Right to Liberty) an enforceable right to
compensation and may lead to a sharp increase in those seeking redress for
alleged abuse of powers.
Against this background, False Imprisonment is an up-to-date and
comprehensive analysis of all the relevant law. It provides an exhaustive
summary of the statute law, reported and unreported cases and the remedies
available. The author also examines the practicalities of bringing a civil
action against the police, officers of HM Customs and Excise and other
authorities, and gives guidance on the assessment of compensation. In
particular, it provides answers to such questions as:
What constitutes an arrest?
What are arrestable offences?
When can the power of arrest be exercised without a warrant?
When does custody by the police cease to be lawful and become tortious
because of its unreasonable duration?
When can a citizen lawfully make an arrest?
What damages can be claimed and what amounts can be recovered under the
various categories of harm?
Author's PREFACE
The number of people arrested and charged with an indictable offence,
rather than merely, receiving a summons, increased from 75% in 1992 to 90% in
1996. Against this seemingly, inexorable increase must be set out the words of
McCardie J in Heddon v Evans (1919) 35 TLR at p 643:
[The Mutiny Act of 1689] was passed at a time when the rights of
personal freedom had been successfully re-asserted in the county. No more
cogent weapons for enforcing such rights then existed or can now exist than the
writ of habeas corpus and the actions for false imprisonment and assault.'
(Author's emphasis.)
With the above dicta of McCardie J in mind, I decided to write a book
explaining the citizens' rights of free movement and the limitations placed on
exercising them by- the power of the police and others to make a summary
arrest. What will surprise many citizens is just how many, other people besides
the constabulary, have been invested by Parliament with the authority to
apprehend their fellow citizens. Indeed, the reader will discover that he or
she is riot powerless in the war against crime and can personally. take a whole
host of suspected offenders into custody and deliver them over to the police or
bring them before a magistrate. Most of these powers were put on a statutory
footing by the Police and Criminal Evidence Act 1984, the rationale of which
was described by, Bingham LJ (as he then was) in R v Lewes Crown Court, ex
parte Hill (1991) 93 Crim App R 60 at 65 as:
. . seek[ing] to effect a carefully judged balance between these
interests [ie the freedom of the individual and the catching of those who
engage in crime].'
This book considers and sets out how this balance has been achieved. It
also gives guidance as to the remedies available to those who suffer the misfortune
of being falsely imprisoned as to the level of compensation they are likely to
receive. The amount of damages can be forecast with some accuracy because the
Court of, Appeal has taken upon itself the task of laving down and enforcing
guidelines.
What finally, convinced me of the need for such a book were two Court
of Appeal cases. First, in Dodd v Chief Constable of South Wales (unreported) 3
February 1999, the Court held that the police possessed the necessary suspicion
so that the plaintiff had been lawfully, arrested for fraudulently - using all
excise licence - despite the fact that such a crime was not an arrestable
offence'. Secondly, the comment of Simon Brown in Burke v, Chief Constable
Merseyside (unreported)
January 1999, that it was only after the jury had retired that counsel
for the first time raised the fundamental question of whether the misdemeanour
for which his client had been apprehended was in fact an arrestable offence.
If this book helps to redress the difficulties apparently encountered
by the bar and judiciary, then my, purpose will have been fulfilled.
The law is that existing at 1 January 2001 and naturally with
references to the Human Rights Act which came into force in October 2000.
NIGEL LEY Gray's Inn Chambers
Review
As a police officer you only need repeat the questions raised above to
decide that this book is worth buying, those questions are, What constitutes an
arrest? What are arrestable offences? when can the power of arrest be exercised
without a warrant? When does custody by the police cease to be lawful and
become tortious because of its unreasonable duration? When can a citizen
lawfully make an arrest? What damages can be claimed and what amounts can be
recovered under the various categories of harm?
A good street officer needs to carry the answer to all of these
questions in his head, he will not have time to read them up when crunch time
comes. Reading this book will prepare him for that moment.
Chapter 5 is of interest to all, "The Citizen's Power of Arrest
without a warrant". It may come as a shock to many just how extensive
these powers are, including the common law power to arrest a person unlawfully
at large, Ronnie Biggs could have had a large reception committee awaiting him
at the airport could we have all gained access to the aircraft.
Rob Jerrard
Young Offenders: Law, Practice and Procedure
Recent legislation has made major changes to
the treatment of young offenders and the operation of the youth justice system.
The new Youth Justice and Criminal Evidence Act 1999 coupled with the fact that
young offenders are not dealt with in a uniform manner, but are subject to
different penalties according to their age, highlights the need for a
comprehensive and up-to-date text for practitioners. Young Offenders: Law,
Practice and Procedure addresses this need and provides a clear statement of
the law, practice and procedures regulating the Youth Court and young
offenders.
The significant reforms introduced by the
Youth Justice and Criminal Evidence Act 1999 are taken into account and the
changes in the law brought about by the Crime and Disorder Act 1998 are
examined. These include two new orders for the sentencing of young offenders -
reparation orders and action plan orders - as well as changes to the procedure
for existing orders. The book also tackles local child curfew schemes, child
safety orders and the requirement of local authorities to establish young
offending teams overseen by a new body, The Youth Justice Board. The
implications of recent European Court of Human Rights decisions in the Bulger
case are also fully explored.
Young Offenders: Law Practice and Procedure
is written by Richard Ward, co-author of best-selling titles The Criminal
Procedure and Investigations Act 1996 and The Crime and Disorder Act 1998 and
author of Criminal Sentencing: The New Law. This new book provides a
comprehensive and up-to-date text for practitioners in this complex and
changing area.
AUTHOR
Richard Ward, Solicitor, Professor of Public
Law and Head of the Department of Law, De Montfort University Leicester