Murray (A.P.) (Appellant)
v.
Ministry of Defence (Respondents)
(Northern Ireland)
JUDGMENT
Die Mercurii 25° Maii 1988
Upon Report from the Appellate Committee to whom was
referred the Cause Murray (A.P.) against Ministry of Defence,
That the Committee had heard Counsel on Wednesday the 20th and
Thursday the 21st days of April last, upon the Petition and
Appeal of Margaret Murray, of 50 Stewartstown Park, Belfast,
praying that the matter of the Order set forth in the Schedule
thereto, namely an Order of Her Majesty’s Court of Appeal in
Northern Ireland of the 20th day of February 1987, might be
reviewed before Her Majesty the Queen in Her Court of
Parliament and that the said Order might be reversed, varied
or altered or that the Petitioner might have such other relief
in the premises as to Her Majesty the Queen in Her Court of
Parliament might seem meet; as upon the Case of the Ministry
of Defence lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side
in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal in Northern Ireland of the 20th day of February 1987,
complained of in the said Appeal be, and the same is hereby,
Affirmed and that the said Petition and Appeal be, and the
same is hereby, dismissed this House: And it is further
Ordered, That the costs, incurred by the said Appellant in
respect of the said Appeal to this House be taxed in
accordance with Schedule 2 to the Legal Aid, Advice and
Assistance (Northern Ireland) Order 1981.
Cler: Asst. Parliamentor:
Judgment: 25.5.88
HOUSE OF LORDS
MURRAY (A.P.)
(APPELLANT)
v.
MINISTRY OF DEFENCE
(RESPONDENTS) (NORTHERN IRELAND)
Lord Keith of Kinkel
Lord Templeman
Lord Griffiths
Lord Oliver of Aylmerton
Lord Jauncey of Tullychettle
LORD KEITH OF KINKEL
My Lords,
I have had the opportunity of considering in draft the
speech to be delivered by my noble and learned friend Lord
Griffiths, I agree with it, and for the reasons he gives would
dismiss the appeal.
LORD TEMPLEMAN
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend Lord Griffiths and, for
the reasons he gives, I too would dismiss the appeal.
LORD GRIFFITHS
My Lords,
The plaintiff, Mrs. Margaret Murray, a resident of
Andersonstown, Belfast, sued the Ministry of Defence for false
imprisonment by the army. Her claim was dismissed by Murray J.
and the Court of Appeal in Northern Ireland, and she now appeals
to your Lordships’ House by leave of the Court of Appeal. She
also appealed to the Court of Appeal from the refusal of Murray
J. to award her damages for trespass to the person arising out of
a “pat search” of her clothing whilst she was in custody. The
Court of Appeal allowed her appeal in this respect and awarded
her £250 damages. There is no appeal against this finding of the
Court of Appeal and it would therefore be inappropriate to express
any view on the correctness or otherwise of that part of the
judgment of the Court of Appeal and I refer to it only as an
incident in the history of these proceedings.
Although I shall have to deal with the facts of the
plaintiff’s arrest and detention in some detail, the appeal raises
the correctness of the procedures laid down and followed by the
army in Northern Ireland when they purport to exercise the power
of arrest, detention and search, contained in section 14 of the
Northern Ireland (Emergency Provisions) Act 1978, which provides:
“(1) A member of Her Majesty’s forces on duty may
arrest without warrant, and detain for not more than
four hours, a person whom he suspects of committing,
having committed or being about to commit any
offence. (2) A person effecting an arrest under this
section complies with any rule of law requiring him
to state the ground of arrest if he states that he is
effecting the arrest as a member of Her Majesty’s
forces. (3) For the purpose of arresting a person
under this section a member of Her Majesty’s forces
may enter and search any premises or other place –
(a) where that person is, or (b) if that person is
suspected of being a terrorist or having committed an
offence involving the use or possession of an
explosive, explosive substance or firearm, where that
person is suspected of being.”
I turn now to the facts. On 22 June 1982, two of the
plaintiff’s brothers, Colum and Eamonn Mayne, were convicted of
arms offences in the United States of America connected with the
purchase of weapons for the I.R.A., and they received sentences of
three years’ and two years’ imprisonment respectively.
At about 6.30 a.m. on 26 July 1982, Corporal Davies, a
member of the Women’s Royal Army Corps, serving with 181
Provos Regiment, attended an army briefing at which she was told
that the plaintiff was suspected of involvement in the collection of
money for purchase of arms for the I.R.A. in the United States,
an offence under section 21 of the Act of 1978 and section 10 of
the Prevention of Terrorism (Temporary Provisions) Act 1976.
Corporal Davies was instructed to go with a number of armed
soldiers to the plaintiff’s house, 50, Stewartson Park,
Andersonstown, and to arrest the plaintiff and bring her to the
army screening centre at Springfield Road.
Acting on these orders, Corporal Davies, who was unarmed,
and five armed soldiers, arrived outside the plaintiff’s house in a
Land Rover at 7.00 a.m. The driver stayed with the Land Rover
in front of the house, one of the soldiers went round to the back
of the house, and the remaining three soldiers and Corporal Davies
went to the front door and rang the bell. The door was opened
by the plaintiff who was only partly dressed. The three armed
soldiers and Corporal Davies immediately entered the house.
Corporal Davies asked the plaintiff if she was Mrs. Margaret
Murray and she replied: “Yes.”
– 2 –
Corporal Davies asked the plaintiff to get dressed and she
and the soldiers then followed the procedure in which they had
been instructed when effecting an arrest in a private house. They
entered every room in the house and asked all the occupants to
assemble in one room. Corporal Davies went upstairs and told the
children, three girls and a boy, to get up and go down to the
living room, and the plaintiff’s husband was also asked to go to
the living room. Corporal Davies stayed with the plaintiff upstairs
whilst she was getting dressed. According to the plaintiff, she
asked at this stage if she was being arrested, and received no
answer. Corporal Davies was not cross-examined about this, but it
seems likely that if the plaintiff had asked the question Corporal
Davies would not have replied, as her instructions were to make
the arrest just before they left the house.
At some stage, Corporal Davies remembers the plaintiff
taking two tablets which she said she needed because she was
diabetic. One of the soldiers downstairs stood in the hallway near
the front door, and the other two looked into the other rooms on
the ground floor and took notes as to their contents including the
pattern of the wallpaper. There was, however, no evidence and no
suggestion that they carried out any search of the contents of the
house.
After the plaintiff had dressed and come downstairs,
Corporal Davies called one of the soldiers to be a witness, and
said to the plaintiff: “As a member of Her Majesty’s forces I
arrest you.” The plaintiff, who is not unversed in these matters,
asked: “Under what section?” Corporal Davies did not reply; the
plaintiff repeated the question, and Corporal Davies said: “Section
14.” Corporal Davies, the plaintiff and the soldiers then left the
house and were all driven in the Land Rover to Springfield Road.
It was not suggested on behalf of the plaintiff that Corporal
Davies or any of the soldiers behaved in a bullying or aggressive
manner towards her or any members of her household or that
there was any undue delay before the plaintiff left the house with
them after she had dressed.
After the Land Rover had been parked in the yard at
Springfield Road, the plaintiff was asked to wait in the back of
the Land Rover while Corporal Davies reported their arrival. She
was then asked by Corporal Davies to get out of the Land Rover
and stand facing the wall of the yard. The plaintiff refused to
face the wall and she and Corporal Davies stood in the yard for a
few minutes until Sergeant Brothers came from an army building
known as the Screening Centre and asked the plaintiff her name,
address and date of birth. The plaintiff only gave her name. She
was then escorted into the building and asked to sit for a short
time in a small cubicle. At 8.05 a.m. she was taken before
Sergeant Brothers who attempted to obtain answers from her that
would enable him to complete a form entitled “Screening Pro
Forma – Part One (To be completed by Reception Controller).”
This short form records personal details, arrest details, a screening
procedure record and appearance. The only information required
from the plaintiff related to her personal details. She refused to
answer any questions save to give her name and the entire
interview took only four minutes, ending at 8.09 a.m. when she
was taken by Corporal Davies to the medical orderly. She was
– 3 –
asked by the medical orderly if she suffered from any illness but,
again, the plaintiff refused to answer any questions.
At 8.20 a.m. the plaintiff was taken to an interview room
and questioned by a soldier in civilian clothes in the presence of
Corporal Davies. The plaintiff maintained a totally uncooperative
attitude, refusing to answer any of the interviewer’s questions. On
three occasions the interview was interrupted when the plaintiff
asked to go to the lavatory, to which she was escorted by
Corporal Davies. The interview ended at 9.35 a.m. The plaintiff
was taken once more to the medical orderly and asked if she had
any complaints about her treatment which she refused to answer.
She declined the offer of transport to return her to her house and
was escorted to the gates of the centre by Corporal Davies and
released at 9.45 a.m.
At the trial before Murray J., the main thrust of her
complaint was that the whole operation carried out by the army
was unlawful from beginning to end. It was submitted that the
plaintiff had been arrested and questioned not because of any
suspicion that she had been involved in collecting money to buy
arms for the I.R.A. but as part of an intelligence-gathering
operation carried out by the army in which innocent persons,
unsuspected of any offence, were brought in for questioning to
gather information that might be useful against others suspected of
I.R.A. activities. This primary attack failed because the judge
held that he was satisfied that Corporal Davies was an entirely
honest witness and that after her briefing she did suspect the
plaintiff of the offences involved in collecting money for the
I.R.A., and thus had the limited power of arrest and detention
conferred on members of the armed forces by section 14 of the
Act of 1978. No appeal is pursued before your Lordships in
respect of this finding of the judge.
However, accepting that the army had grounds for arresting
and detaining the plaintiff, it is submitted that the procedures
they adopted were unlawful in two respects. Firstly, it is said
that the plaintiff should have been told that she was under arrest
as soon as her identity was established when she opened the door
at 7.00 a.m. and the failure to tell her that she was under arrest
until just before they left the house at 7.30 a.m. meant that she
was unlawfully detained and thus unlawfully imprisoned for half an
hour. Secondly, it is said that she was detained at the centre for
an unjustifiably long period before she was released and thus
unlawfully imprisoned during the latter period of her detention at
the centre.
The Court of Appeal rejected both these complaints of
unlawful imprisonment. They gave the following reasons for
rejecting the complaint of false imprisonment from 7.00 to 7.30
a.m.:
“Whether the plaintiff has any complaint in law on account
of her treatment during the first half-hour before the
formal words of arrest were spoken may depend upon
whether in law she was already under arrest, or, if not,
whether she was being falsely imprisoned. During that
period the evidence was that had the plaintiff attempted to
leave the house she would have been stopped. Had she been
– 4 –
denied the right to leave, that refusal would have
constituted an imprisonment in law. But it also appears
from the terms of her inquiry that she did not appreciate
that she would not have been free to leave the house. I
am satisfied that because of this lack of any indication by
any member of the army that the plaintiff was being
arrested or any appreciation on her part of what would have
been the reaction had she attempted to leave, she was not
during that period under arrest or falsely imprisoned.
Knowledge of the fact of restraint by the suspect is an
essential element of an arrest. There was some indication
to the contrary in Meering v. Grahame-White Aviation Co.
Ltd. (1919) 122 L.T. 44. In that case the Court of Appeal
divided on the question. Atkin L.J. expressly stated that
awareness of the fact of detention was unnecessary.
Warrington L.J. who concurred in the result does not appear
to have considered the question whether the knowledge was
necessary and the report does not indicate whether this was
a matter which was argued. The third member of the
court, viz. Duke L.J., was of the opinion that a person
could not claim to have been falsely imprisoned without
knowledge of the fact of the denial of liberty. The opinion
of Atkin L.J. has been subject to considerable criticism. In
the first place it is plainly inconsistent with the decision of
the Court of Exchequer in Herring v. Boyle (1834) 1 Cr. M.
& R. 377, a decision of a court of equal authority which
apparently was not cited to the court. Academic criticism
of the opinion of Atkin L.J. may be found, for example, in
Smith and Hogan, Criminal Law, 5th ed. (1983), pp. 385-386;
Street on Torts, 7th ed. (1983), pp. 25-26; Winfield and
Jolowicz on Tort, 12th ed. (1984), pp. ” 59-60 and
Restatement of the Law of Torts, (1935) 83 U.Pa.L.Rev.
411, 418. I consider that the conclusion in Herring v. Boyle
is to be preferred to the dictum of Atkin L.J. which was
not part of the ratio of the decision, and, therefore, that
the plaintiff was not subject to imprisonment until formally
arrested.”
Counsel for the plaintiff attacked the finding of the Court
of Appeal that the plaintiff did not know that she was under
restraint until she was told she was arrested. He submitted that
it is an irresistible inference that once the armed soldiers had
entered the house and the plaintiff had identified herself and had
been told to get dressed, she must have realised that she was
under restraint. It is true she says she asked if she was under
arrest whilst dressing, but this is to be interpreted as a challenge
to authority rather than as indicating any doubt in her mind about
the fact of restraint. It is pointed out that Corporal Davies was
actually with her as she was getting dressed which was when she
said she asked the question. Counsel for the Ministry of Defence
felt constrained to accept this part of the plaintiff’s submission
and, in my view, he was right to do so. The plaintiff was in fact
under restraint in her house from the moment she was identified.
Corporal Davies stayed with her throughout the time it took her
to dress and prepare to leave, and the plaintiff must have realised
that she was under restraint and was not free to leave the house.
The next step in the plaintiff’s argument is the submission
that during the time that she was under restraint, between 7.00
– 5 –
and 7.30 a.m., she was not under arrest, and her arrest only
commenced when she was told she was arrested at 7.30 a.m.
Therefore, the plaintiff submits, the period of detention before
arrest was unlawful and the Ministry of Defence liable for the tort
of unlawful imprisonment during that period of half an hour whilst
the plaintiff was getting dressed. If the plaintiff had been told
she was under arrest the moment she identified herself, it would
not have made the slightest difference to the sequence of events
before she left the house. It would have been wholly unreasonable
to take her off, half-clad, to the army centre, and the same half-
hour would have elapsed while she gathered herself together and
completed her toilet and dressing. It would seem a strange result
that in these circumstances, whether or not she has an action for
false imprisonment should depend upon whether the words of arrest
are spoken on entering or leaving the house, when the practical
effect of the difference on the plaintiff is non-existent.
I do not accept the distinction drawn by the plaintiff’s
counsel between detention to the knowledge of the detainee and
arrest. In Hussien v. Chong Fook Kam [1970] AC 942, Lord
Devlin said, at p. 947:
“An arrest occurs when a police officer states in terms that
he is arresting or when he uses force to restrain the
individual concerned. It occurs also when by words or
conduct he makes it clear that he will, if necessary, use
force to prevent the individual from going where he may
want to go.”
In Spicer v. Holt [1977] A.C. 987, Viscount Dilhorne said, at p.
1000:
” ‘Arrest’ is an ordinary English word. . . . Whether or not
a person has been arrested depends not on the legality of
the arrest but on whether he has been deprived of his
liberty to go where he pleases.”
In Mohammed-Holgate v. Duke [1984] A.C. 437, Lord Diplock said,
at p. 441:
“First, it should be noted that arrest is a continuing act; it
starts with the arrester taking a person into his custody (sc.
by action or words restraining him from moving anywhere
beyond the arrester’s control), and it continues until the
person so restrained is either released from custody or,
having been brought before a magistrate, is remanded in
custody by the magistrate’s judicial act.”
In the light of these authorities I can entertain no doubt that the
plaintiff was under arrest from the moment that Corporal Davies
identified her on entering the house at 7.00 a.m.
The question remains, however, whether the failure to tell
the plaintiff that she was being arrested until the soldiers were
about to leave the house renders the arrest unlawful. It has been
well-settled law, at least since Christie v. Leachinsky [1947] A.C,
573, that a person must be informed of the reason for his arrest
at or within a reasonable time of the arrest. There can be no
doubt that in ordinary circumstances, the police should tell a
– 6 –
person the reason for his arrest at the time they make the arrest.
If a person’s liberty is being restrained, he is entitled to know the
reason. If the police fail to inform him, the arrest will be held
to be unlawful, with the consequence that if the police are
assaulted as the suspect resists arrest, he commits no offence, and
if he is taken into custody, he will have an action for wrongful
imprisonment. However, it is made plain in the speeches in
Christie v. Leachinsky that there are exceptions to this general
rule.
It is a feature of the very limited power of arrest contained
in section 14 that a member of the armed forces does not have to
tell the arrested person the offence of which he is suspected, for
it is specifically provided by section 14(2) that it is sufficient if
he states that he is effecting the arrest as a member of Her
Majesty’s forces. Corporal Davies was carrying out this arrest in
accordance with the procedures in which she had been instructed
to make a house arrest pursuant to section 14. This procedure
appears to me to be designed to make the arrest with the least
risk of injury to those involved including both the soldiers and the
occupants of the house. When arrests are made on suspicion of
involvement with the I.R.A., it would be to close one’s eyes to the
obvious not to appreciate the risk that the arrest may be forcibly
resisted.
The drill the army follow is to enter the house and search
every room for occupants. The occupants are all directed to
assemble in one room, and when the person the soldiers have come
to arrest has been identified and is ready to leave, the formal
words of arrest are spoken just before they leave the house. The
army do not carry out a search for property in the house and, in
my view, they would not be justified in doing so. The power of
search is given “for the purpose of arresting a person,” not for a
search for incriminating evidence. It is however a proper exercise
of the power of search for the purpose of effecting the arrest to
search every room for other occupants of the house in case there
may be those there who are disposed to resist the arrest. The
search cannot be limited solely to looking for the person to be
arrested and must also embrace a search whose object is to secure
that the arrest should be peaceable. I also regard it as an
entirely reasonable precaution that all the occupants of the house
should be asked to assemble in one room. As Corporal Davies
explained in evidence, this procedure is followed because the
soldiers may be distracted by other occupants in the house rushing
from one room to another, perhaps in a state of alarm, perhaps
for the purpose of raising the alarm and to resist the arrest. In
such circumstances a tragic shooting accident might all too easily
happen with young, and often relatively inexperienced, armed
soldiers operating under conditions of extreme tension. Your
Lordships were told that the husband and children either had
commenced, or were contemplating commencing, actions for false
imprisonment arising out of the fact that they were asked to
assemble in the living-room for a short period before the plaintiff
was taken from the house. That very short period of restraint
when they were asked to assemble in the living room was a proper
and necessary part of the procedure for effecting the peaceable
arrest of the plaintiff. It was a temporary restraint of very short
duration imposed not only for the benefit of those effecting the
arrest but also for the protection of the occupants of the house
– 7 –
and would be wholly insufficient to found an action for unlawful
imprisonment.
It was in my opinion entirely reasonable to delay speaking
the words of arrest until the party was about to leave the house.
If words of arrest are spoken as soon as the house is entered
before any precautions have been taken to search the house and
find the other occupants, it seems to me that there is a real risk
that the alarm may be raised and an attempt made to resist
arrest, not only by those within the house but also by summoning
assistance from those in the immediate neighbourhood. When
soldiers are employed on the difficult and potentially dangerous
task of carrying out a house arrest of a person suspected of an
offence in connection with the I.R.A., it is I think essential that
they should have been trained in the drill they are to follow. It
would be impracticable and I think potentially dangerous to leave
it to the individual discretion of the particular soldier making the
arrest to devise his own procedures for carrying out this unfamiliar
military function. It is in everyone’s best interest that the arrest
is peaceably effected and I am satisfied that the procedures
adopted by the army are sensible, reasonable and designed to bring
about the arrest with the minimum of danger and distress to all
concerned. I would however add this rider: that if the suspect,
for any reason, refuses to accept the fact of restraint in the
house he should be informed forthwith that he is under arrest.
In the circumstances in this case it was, in my opinion,
reasonable to speak the words of arrest as they were leaving the
house and the failure to do so at an earlier time did not render
the plaintiff’s arrest unlawful. I therefore agree with the
conclusion of the Court of Appeal that the plaintiff was not
unlawfully imprisoned between 7.00 and 7.30 a.m. albeit my
reasons for doing so are different from those of the Court of
Appeal.
Although on the facts of this case I am sure that the
plaintiff was aware of the restraint on her liberty from 7.00 a.m.,
I cannot agree with the Court of Appeal that it is an essential
element of the tort of false imprisonment that the victim should
be aware of the fact of denial of liberty. The Court of Appeal
relied upon Herring v. Boyle, 1 Cr. M. & R. 377 for this
proposition which they preferred to the view of Atkin L.J. to the
opposite effect in Meering v. Grahame-White Aviation Co. Ltd.,
122 L.T. 44. Herring v. Boyle is an extraordinary decision of the
Court of Exchequer: a mother went to fetch her 10-year-old son
from school on 24 December 1833 to take him home for the
Christmas holidays. The headmaster refused to allow her to take
her son home because she had not paid the last term’s fees, and
he kept the boy at school over the holidays. An action for false
imprisonment brought on behalf of the boy failed. In giving
judgment Bolland B. said, at p. 381:
“as far as we know, the boy may have been willing to stay;
he does not appear to have been cognisant of any restraint,
and there was no evidence of any act whatsoever done by
the defendant in his presence. I think that we cannot
construe the refusal to the mother in the boy’s absence, and
without his being cognisant of any restraint, to be an
imprisonment of him against his will; …”
– 8 –
I suppose it is possible that there are schoolboys who prefer to
stay at school rather than go home for the holidays but it is not
an inference that I would draw, and I cannot believe that on the
same facts the case would be similarly decided today. In Meering
v. Grahame-White Aviation Co. Ltd., the plaintiff’s employers, who
suspected him of theft, sent two of the works police to bring him
in for questioning at the company’s offices. He was taken to a
waiting-room where he said that if he was not told why he was
there he would leave. He was told he was wanted for the purpose
of making inquiries about things that had been stolen and he was
wanted to give evidence; he then agreed to stay. Unknown to the
plaintiff, the works police had been instructed not to let him leave
the waiting-room until the Metropolitan Police arrived. The works
police therefore remained outside the waiting-room and would not
have allowed the plaintiff to leave until he was handed over to
the Metropolitan Police, who subsequently arrested him. The
question for the Court of Appeal was whether on this evidence the
plaintiff was falsely imprisoned during the hour he was in the
waiting-room or whether there could be no “imprisonment”
sufficient to found a civil action unless the plaintiff was aware of
the restraint on his liberty. Atkin L.J. said, at pp. 53-54
“It appears to me that a person could be imprisoned without
his knowing it. I think a person can be imprisoned while he
is asleep, while he is in. a state of drunkenness, while he is
unconscious, and while he is a lunatic. Those are cases
where it seems to me that the person might properly
complain if he were imprisoned, though the imprisonment
began and ceased while he was in that state. Of course,
the damages might be diminished and would be affected by
the question whether he was conscious of it or not. So a
man might in fact, to my mind, be imprisoned by having the
key of a door turned against him so that he is imprisoned in
a room in fact although he does not know that the key has
been turned. It may be that he is being detained in that
room by persons who are anxious to make him believe that
he is not in fact being imprisoned, and at the same time his
captors outside that room may be boasting to persons that
he is imprisoned, and it seems to me that if we were to
take this case as an instance supposing it could be proved
that Prudence had said while the plaintiff was waiting: ‘I
have got him detained there waiting for the detective to
come in and take him to prison’ – it appears to me that
that would be evidence of imprisonment. It is quite
unnecessary to go on to show that in fact the man knew
that he was imprisoned. If a man can be imprisoned by
having the key turned upon him without his knowledge, so
he can be imprisoned if, instead of a lock and key or bolts
and bars, he is prevented from, in fact, exercising his
liberty by guards and warders or policemen. They serve the
same purpose. Therefore it appears to me to be a question
of fact. It is true that in all cases of imprisonment so far
as the law of civil liability is concerned that ‘stone walls do
not a prison make,’ in the sense that they are not the only
form of imprisonment, but any restraint within defined
bounds which is a restraint in fact may be an
imprisonment.”
– 9 –
I agree with this passage. In the first place it is not
difficult to envisage cases in which harm may result from unlawful
imprisonment even though the victim is unaware of it. Dean
William L. Prosser gave two examples in his article in the
Columbia Law Review, vol. 55 (June 1955), p. 847 (“False
Imprisonment: Consciousness of Confinement”), in which he
attacked section 42 of the Restatement of Torts which at that
time stated the rule that “there is no liability for intentionally
confining another unless the person physically restrained knows of
the confinement.” Dean Prosser wrote, at p. 849:
“Let us consider several illustrations. A locks B, a child
two days old, in the vault of a bank. B is, of course,
unconscious of the confinement, but the bank vault cannot
be opened for two days. In the meantime, B suffers from
hunger and thirst, and his health is seriously impaired; or it
may be that he even dies. Is this no tort? Or suppose
that A abducts B, a wealthy lunatic, and holds him for
ransom for a week. B is unaware of his confinement, but
vaguely understands that he is in unfamiliar surroundings,
and that something is wrong. He undergoes mental suffering
affecting his health. At the end of the week, he is
discovered by the police and released without ever having
known that he has been imprisoned. Has he no action
against B? … If a child of two is kidnapped, confined,
and deprived of the care of its mother for a month, is the
kidnapping and the confinement in itself so minor a matter
as to call for no redress in tort at all?”
The Restatement of Torts has now been changed and requires that
the person confined “is conscious of the confinement or is harmed
by it” (Reinstatement of the Law, Second, Torts 2d (1956), section
35, p. 52).
If a person is unaware that he has been falsely imprisoned
and has suffered no harm, he can normally expect to recover no
more than nominal damages, and it is tempting to redefine the
tort in the terms of the present rule in the American Restatement
of Torts. On reflection, however, I would not do so. The law
attaches supreme importance to the liberty of the individual and if
he suffers a wrongful interference with that liberty it should
remain actionable even without proof of special damage.
I turn now to the complaint that the plaintiff was
unlawfully detained at the Springfield Road Centre. It is rightly
conceded by the plaintiff that a suspect arrested under section 14
may be questioned to confirm or allay the suspicion on which he
was arrested. It was however submitted that the right to ask such
questions is confined to the person making the arrest. I can see
nothing in the wording of the section which forbids anyone save
the arrester to ask any questions of the suspect whilst they are in
custody. Corporal Davies suspected the plaintiff solely because of
what she had been told at the army briefing and questioning by
her would have been unlikely to advance matters at all. On the
other hand, questioning by a skilled interrogator, who is likely to
have access to far more background information, may well either
confirm the suspicion or show that it was mistaken, or, as appears
to be the case here, that the grounds of suspicion were not
sufficient to warrant handing over the suspect to the police. It
– 10 –
therefore seems sensible to carry out the questioning by a fully
briefed and skilled interrogator. I reject the submission that the
suspect cannot be asked questions other than by the arresting
officer.
The final objection to the detention at the Centre turns
upon the state of the evidence in this case. The power of
detention under section 14 is “for not more than four hours,” and
it is common ground that the burden is on the army to show not
only that the period of detention did not exceed four hours but
also that it did not exceed the time that was reasonably required
to make a decision whether to release the suspect or to hand
them over to the police. The member of the forces who carried
out the interrogation between 8.20 and 9.35 a.m. was not called as
a witness on behalf of the Ministry of Defence. There may have
been sound reasons for this decision associated with preserving the
confidentiality of interrogating techniques and the identity of the
interviewer; but be that as it may, the only evidence of what took
place at the interview came from Corporal Davies and the
plaintiff and it is submitted that this evidence is insufficient to
establish that the interview was directed towards an attempt to
investigate the suspicion upon which the plaintiff was arrested.
Corporal Davies was present at the interview, she was not paying
close attention but she gave evidence that she remembered
questions about the plaintiff’s brothers and questions about money
which were obviously directed towards the offences of which the
plaintiff was suspected, the plaintiff also said she was questioned
about her brothers.
The judge also had before him a questionnaire that was
completed by the interviewer. The questionnaire was in the
standard form used as the basis for interviewing all suspects. It is
directed to establishing information about the suspect, her relations
and friends and about other matters which, although routine, may
in fact tend to dispel or establish suspicion; it also provides space
to record answers directly related to the suspected offence. It
would be to ignore all experience of interview technique to limit
questioning a suspect to two or three questions directly related to
the suspected offence and I cannot accept the complaint of the
plaintiff’s counsel that the questionnaire formed an improper basis
for questioning a suspect on the ground that it asked questions not
directly relevant to the suspected offence. There is nothing in the
questionnaire which the army may not reasonably ask the suspect
together with such particular questions as are appropriate to the
particular case. In fact the questionnaire in this case was wholly
uninformative as the plaintiff refused to answer any of the
interviewer’s questions. The trial judge expressed himself as
satisfied that the plaintiff “was not asked unnecessary or
unreasonable questions.” The Court of Appeal said:
“There is no doubt, therefore, that the interviewer did
attempt to pursue the subject of the suspicion which had
been the occasion of her arrest but was unable to make any
headway.”
I am satisfied that the evidence justified these conclusions and
that there is no substance in this final ground of complaint. I
would therefore dismiss this appeal.
– 11 –
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend Lord Griffiths and, for the reasons he
gives, I too would dismiss the appeal.
LORD JAUNCEY OF TULLICHETTLE
My Lords,
I have had the advantage of reading in draft the speech of
my noble and learned friend Lord Griffiths and, for the reasons he
gives, I too would dismiss the appeal.
– 12 –
Source: https://www.bailii.org/
