Features

About false imprisonment

MANY JAMAICANS HAVE experienced false imprisonment, but not many are able to recognise it, and only a few might be able to access the judicial system to purse a claim for this kind of trespass, which developed from the criminal law.

Generally, false imprisonment consists of the unlawful or false imprisonment in such confinement or detention without lawful authority.

It is important to note that for the tort to be committed, there must be in fact a complete deprivation of the claimant's liberty. This means that the court must be satisfied that there is actual detention and complete loss of freedom. In short, false imprisonment involves the infliction of bodily restraint, which is not expressly or impliedly authorised by law.

It is important to note that for a case of false imprisonment to be proved at the requisite standard required by law, the claimant must prove that it was not of his own free will and volition that he chose to remain at a particular place, when he was free to come and go. In sum, the there must be no physical obstruction or obstacle for the claimant to overcome.

No contact necessary

However, there is no need for physical contact, but in the event where a person is told by, say a police officer or security guard, to go with him, even if he does not touch him, this might in all the circumstances lead to false imprisonment.

It seems to me that the real test is whether force would have been used to compel the claimant if he decides not to go with the police officer or guard. In addition, there must be a positive act on the part of the defendant to the claim. Thus, there might be occasions when the defendant refuses to cooperate, but maybe there is no positive act to restrain.

For instances where the defendant refuses to assist the claimant to leave a building or a particular place, there might be no positive act to restrain.

It must be noted here, that there can be no action against the Crown for any lawful detention or imprisonment, however, horrible the conditions might be. However, if a duty of care is owed to the claimant, while in custody or detention, he may bring an action in negligence for any breach of that duty of care.

Some might ask about the duration of detention. There is a view that any unlawful detention should attract compensation, but if the detention is brief, the court is likely to say it was de minimis and only award a nominal sum as compensation.

The usual defences to false imprisonment are consent (volenti non fit injuria), necessity, duress, immunity from a claim and imprisonment which is authorised by law, that is to say, those authorised by the courts or by the law.

Next week I will look at the defences, especially what constitutes lawful arrest and detention and how an arrest is brought about.

Keith N. Bishop is an attorney-at-law and a partner in the firm of Bishop & Fullerton.