UNIT II: INTENTIONAL INTERFERENCE WITH PERSON

2.1 Introduction

2.2 Battery -Assault — False imprisonment - AiTest by Police Officers

2.3 Justifications of trespass to person

2.4 Abuse of legal process - Malicious prosecution - Distinction between false imprisonment
and malicious prosecution ,

Case Law

# Fowler v. Lannirtg (1959) 1 All ER 290

P Letang v. Cooper (.1964) 7. All ER 929 .
4 Fagan v. Metropolitan Police Commissioner {1968)3 All ER 443
4 Collins v. Witco.dk (1984) 3 All ER 374
4 Witson v. Pringle (1986 ) 2 All ER 440
4 Read v. Coker (1853) 13 CB 850
4 Robinson v. Balmain New Ferry Co. Ltd. (1910) AC 245
4 Hague v. Dy. Governor of Parkhursf/Weldon v. Home Office (1 991) 3 All ER 733
4 Murray v. Ministry of Defence (1988) 2 All ER 521
4 DalffSOTl v. CaffeT y (1964)2 All ER 610
4 Kamta P. Gupla- v. NBCC Ltd. AIR 1992 Delhi 275
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 2.1 I TRODL CTI OF

In early Eng fish law, phj sical interference is ith the per son was given spec ial
protection, panty to avoid the unhappy consequence of people taking the la» into
their own hands bj revenge atiack. Until the abolition of the old forms of action in the 19'h
century, direct attack upon the person were protected by the action of trespass, hich
required no proof of damage. lndirecl interference with the person was protected by the
action on the case, which did require proof of damage.

Today. the basic position is that direct and intentional acts of interference are slill dealt
with by the tort of trespass, while indirect and unintentional acts fall under the tort of
negligence. However, the situation is more complex than this suggests and some
authorities suggest that even in trespass the claimant must now establish intention or
negligence in addilion to the act of interference.

Letaiig v Cooper J1964] 2 All ER 929

In July, 1957, the plaintiff was run over by a motor vehicle negligently driven by
the defendant. By writ issued on Feb. 2, 1961 (that is, after the three years' period of
r ”I limitation provided by s. 2(1) of the Law Reform (Limitation of Actions, etc.) Act, 19J4,
had expired) the plaintiff brought an action for damages for personal injuries, claiming in
negligence and alternatively for trespass to the person. The particulars of trespass pleaded
in her statement of claim repeated those pleaded in respect of negligence. Held: the
plaintiffs cause of action was statute barred by the proviso added to s. 2(1) of the
Limitation Act, 1939, by s. 2(1) of the Law Reform (Limitation of Actions, etc.) Act,
1954, for the following reasons-

(i) as the personal injury to the plaintiff was inflicted unintentionally, her only cause of
action at the present day lay in negligence (or, per Diplock, L.J., was a cause of action
arising from a factual situation to which cause of action the preferable description was
negligence), and accordingly the cause of action was statute barred after the lapse of
three years (see p. 933, letter A,p. 934, letter G, p. 935, letter C, and p. 936, letter
C, post). Kruber v. Grzesiak ([1963] V.L.R. 621)applied.(ii)

(ii) if, however, the cause of action was trespass to the person, the words ”breach of duty"
in the proviso to s. 2(1) of the Act of 1939 covered that cause of action (see p. 933,
letter 1, p. 934, letter F, p.936, letter E, and p. 937, letter H, post.)Per Lord
Denning, M.R.: it is legitimate to look at a report of the committee that preceded
legislation in order to see what was the mischief at which the statute, when enacted, was
directed, but not in order to interpret the words of the statute according to the
recommendations of the committee (see p. 933, letter D, post).Decision of Elwes, J.,
([ 1964] I All E.R. 669) reversed

Trespass to the person does not lie if the injury to the claimant, although the
direct consequence of the act of the defendant, was caused unintentionally and without
negligence on the defendant's part.

This appears to suggest that there is a fomi of negligent trespass, which is almost
a contradiction in terms. In Fâivler v LnDning [1959] the pleadings claimed for damages
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f
o
r

119
59]
2.
W.L
.R.
241

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trespass to the person stan in* t)ia1 ”the detendant shot the plainti II' The Defcndant
argued that this siaternent disclosed no case against him as it did not mention ;i heiher it v
'as intentional or negligenl and thus didn't identify w hether the cause of action w hether
negligence or trespass to the person: if negligence is alleged it is necessarj' under the CPR
(and at the time under the RSC) to state the 'paHiculars of negligence' i.e. how was the
Defendant negligent. The injuries l‘ère sustained at a shooting party and there was no
suggestion that they were intentional. ln holding that the statement disclosed no cause of
action, Diplock J stated that it w'as necessary to state the details about what was being
alleged: was it negligence or intention. While this case is essentially about procedure it
shows that intentional and unintentional trespass are different causes.

There are three forms of trespass to the person: assault, battery and false imprisonment.
The tort in W’ilkin.son v Do›vnlon , which fall into a separate category of intentionally
caused harm, will also be dealt with in this chapter.

2.2 TYPES OF TRESSPASS TO PERSON

A. Battery

The application of force to the person of another without lawful justification, amounts to
the wrong of battery. This is so, however trivial the amount or nature of the force may
he, and even though it neither does nor is intended nor is likely or able to do any
manner of harm." Even to touch a person without his consent or some other lawful reason
is actionable. Nor is anger or hostility essential to liability: an unwanted kiss may be a
battery. For the interest that is protected by the law of assault and battery is not merely
that of freedom from bodily harm, but also that of freedom from such forms of insult as
may be due to interference with his person. In respect of personal dignity, therefore, a
man may recover substantial damages for a battery which has done him no physical
harm whatever, as when fingerprints are taken without observing. the statutory
requirements, e.g. that the prints be taken in the building which houses the court which
made the order.

It is certainly clear that consent is implied to such physical contacts as are a

reasonably necessary consequence of social life, e.g. touching another on the shoulder
to attract his attention, and in the crowded conditions of modern England there is a
judicial tendency to widen this exception. A defence is therefore available for ”the
jostler, the back-slapper, and the hand-shaker” or the person who swats a horsefly on a
friend's thigh. Consent may also be implied to harm suffered in the course of sonic
lawful game. But footballers have been- ordered to pay substantial damages for
deliberately fouling an opponent.

Intentionally to bring any materiaJ object into contact with another's person is a
sufficient application of force to constitute a battery; for example, io throw water upon
him. or to pull a chair from under him whereby he falls to the ground or to apply a ”tone-
rinse” to his scalp. So it is a battery forcibly to take from him some object which he
holds or wears. It is also probably a battery to project heat. light, noisc, or vapours
onto another person in such a manner as to cause physical injury or personal
discomfort. But the appropriate tort for personal 79 injuries resulting from medical treatment
is not battery but negligence.

” [1987] 2 QB S7
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 iVleaning of Force

Any physical contact ›v ith the body of the plaintiff (or with his c Nothing) is sutficient to
amount to "force" there is a battery when the defendant shoots the plaintiff from a
distance
just as much as when he strikes him with his fist. Mere passive obstruction, ho» ever, is not a
batter and there requirement that the wrong be direct may mean mat there is no battery
if l
daub with filth a towel which I hope that you will use, and you unwittingly do so and
befoul your face. Whether the in friction of such things as heat or light or blowing
smoke upon a
person would be held, to be battery is uncertain, but there is no doubt that if injury is thereby
caused it would be actionable on the principle of Witkinson v. Doivntori. If, however, there
is "force" in the technical sense, no physical hurt is necessary, for all forms of trespass
are actionable per se. Wheie there is consent to the contact there is no battery and the
same is true if the plaintiff, though not in fact consenting, so conducts himself as to
lead the defendant reasonably to believe that consent exists. Subject to lawful,
authority, such as a power of arrest. an adult of full understanding has an absolute right to
the inviolabitity of his body and therefore has on absolute right to choose whether or
not to consent to medical treatment even if the treatment is necessary to save his life,
or, in the case of a pregnant woman, the life of her unborn child. Similarly, an adult of
full capacity has the right to choose whether to eat or not: "Even if the refusal to eat is
tantamount to suicide, as in the case of a Hunger strike, he cannot be compelled to eat
or forcibly fed".

Life would be difficult if all bodily contact were actionable unless it could be brought
w‘ithin a specific justification or defence and the courts have struggled to find
some further
ingredient to distinguish battery from legally unobjectionable conduct. In Cole v. Turner
Lord Holt C.J. said that "the least touching of another in anger is a banery" but this would
be too narrow, for an unwanted kiss is as much actionable as a blow and "anger" might
well be an inapt description of the defendant's motive.'

Whatever the true explanation, it remains the law that touching another in the course
of conversation or in order to draw his attention to something is no battery. Even some
persistence may be justifiable, for the lost or dislressed may surely be permitted a
second touch, or possibly even more on a reluctant or impervious sleeve or shoulder, as
may a person
who is acting reasonably in the exercise of a duty. In each case, the test must be whether the
physical contact so persisted in has in the circumstances gone beyond generally
accepted standards of conduct.

For battery there must be a voluntary act by the defendant intended to bring about the
contact with the plaintiff. I do not commit battery against you if X seizes may arm and
uses it like a clut›-here X and X atone is liable. But the act need be intentional only as to
the contact and intention to bring about the harmful consequence is not required: if D
pushes P into a swimming pool and injury occurs, then, assuming D's act to be "hostile",
there is liability for the injury even though it was neither desired nor even foreseen by D.

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 Hostite intent? Not every deliberate touching of another constitutes a battery. A
degree or physical contact is an inevitable part of everyday life. I n Wilson v. Pringie5
the Court of
Appeal said that for a touching to constitute battery it must be shown to be a ”hostile

[1987] QB 237 (CA)

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touching". Hostility’ was not ho» ever k› be ec|tiated with malevolence or it will. 1.ord Goft’ in
F. v. Ii"e.i/ fierlsJiirc Heolili .-1iitl orin [1*99G] HL, doubted the usefulness of the ord
“hostile” to define the required state of hind in battery’. The term was incompatible with
the basic principle that “any touchinp• of another's body is. in the absence of la»'fu1
excuse. capable of amounting to a battery and a trespass.” Lord Goff restated his own
definition of the boundaries of battery. \Vas any phybiv.ai contact imposed on the
plaintiff in excess of that “generally acceptable in ever yday I ife” I f it was, and the
defendant is a» are that that is the case, and that the plaintiff has not consented to the
contact, he commits a battery. So for example, kissing a nevly met colleague on the lips
may riot be motivated by hostility. but clearly falls beyond what is generally
acceptable in everyday life. Shaking his hand falls within Lord GofP s exception to the
general prohibition on non-consensual touching. No battery is committed even
though. unbeknoivn to the defendant, the plaintiff has a fixed aversion to any form of
physical contact.

Absence of Consent- The exception to the general prohibition on non-consensual

touching based on the exigencies of everyday life, has often been rationalized as
derived from the implicit consent of the plaintiff to inevitable and mundane bodily
contacts. Lord Goff. first in Collins v. Wilcock, and then in F. v. West Berkshfre Health
Authority rejects that rationalization as artificial. Such cases fail into exceptions to the
“rule”. “General exception embracing all physical contact benerallyacceptable in the
ordinary conduct of everyday life.” Nonetheless for the purpose of considering the
burden of proof, in battery it may he convenient still to regard everyday contacts
as derived at least in part from an implicit consent thereto. For it is clear that the
burden of proving absence of consent lies on the plaintiff, regardless of whether the
allegation is that the plaintiff expressly rejected the Contact or that that contact
exceeded the boundaries of generally acceptable conduct. So by way of illustration one
person touching another to catch his attention will generally commit no battery, since the
other's assent to the act may be implied.

Where the relevant contact is clearly neither consented to, nor covered by the
exigencies of everyday life the burden of proving other lawful excuse lies on the
defendant. Surgery on an unconscious patient is justifiable not on the basis of any tacit
consent but by invoking the defence of necessity."

Consent or lawful excuse- In recent years much of the debate on the boundaries of
consent in battery has revolved around consent to medical treatment.

In N. v’. West Berkshire Health Au//iorify the House of Lords held that treatment of a
person unable to consent to treatment on his own behalf was justified on grounds of
necessity providing what was done was done in his best interests. Lord Goff made it clear
that such a defence of necessity to an act which would otherwise constitute battery was not
one confined to medical and other health professionals. If a person is lying unconscious in
the street and a passer-by seeks to administer first aid, or a mentally incapacitated person
is endangering his own safety and a neighboqur restrains him, no battery is committed.

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82
 Fagan v. Metropolitan Poiice Commissioner (1968) 3 Ali ER 443

As Lagan was parking his car at the direction of a police constable. the car came to rest on
the constable's foot. Urged by the constable to back off, Fagan became abusive and sw
itched off the engine before eventually complying. Fagan was convicted by the
Willesden Magistrates of assaulting a police constable in the execution of his duty,
and his appeal to ivliddlesex
Quarter Sessions was dismissed, as was his present appeal to the Divisional Court, Bridge J.
dissenting.

James J. (with whom Lord Parker C.J. agreed): ... The justices ... were left in doubt whether
the mounting of the wheel on to the officer's foot was deliberate or accidental. They
were satisfied, ^however, beyond all reasonable doubt that the appellant "knowingly,
provocatively and unnecessarily" allowed the wheel to remain on the foot after the officer
said "Get off, you
are on my foot." They found that, on these facts, an assault was proved

In our judgment, the question arising, which has been argued on general principles, falls to
be decided on the facts of [the particular case. ... an assault is any act which intentionally
or .. recklessly causes another person to apprehend immediate and unlawful personal
violence. Although ‘assault’ is an independent crime and is to be treated as such, for
practical purposes today ‘assault’ is generally synonymous with the term ‘battery’, and
is a term used to mean the actual intended use of unlawful force to another person
without his consent.

On the facts of the present case, the ‘as5ault’ alleged involved a ‘battery’. Where an
assauli involved a battery, it matters not, in our judgment, whether the battery is inflicted
directly by
the body of the offender or through the medium of some weapon or instrument controlled
by the action of the offender. An assault may be committed by the laying of a hand on
another, and the action does not cease to be an assault if it is a stick held in the hand and
not the hand itself which is laid on the person of the victim. So, for our part, we see no
difference in principle between the action of stepping on to a person's toe and
maintaining that position and the action of driving a car on to a person's foot and sitting
in the car white its position on the foot is maintained.

To constitute this offence, some intentional act must have been performed; a mere
omission to act cannot amount to an assault ...£or our part, we think that the crucial
question is whether, in this case, the act of the appellant can be said to be complete
and spent at the moment of time when the car wheel came to rest on the foot, or
whether his act is to be regarded as a continuing act operating until the wheel was
removed .

For an assault to be committed, both the elements of actus reus and mens rea must be
present at the same time. The ‘actus reus’ is the action causing the effect on the victim's
mind ... The ‘mens rea“ is the intention to cause that effect. It is not necessary that
mens rea should be present at the inception of the actus reus; it can be superimposed on
an existing act. On the other hand, the subsequent inception of mens rea cannot
convert an act which has been completed without mens rea into an assault.
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 In our judgment, the justices at Willesden and quarter sessions were right in law. On the
facts found, the action of the appellant may have been initially unintentional, but the time
came when, knowing thal the wheel was on the officer's foot, the appellant (i) remained seated in

84
the car so that his body through the medium of the car ii as in contact with the
of'ficer. (ii) s»’itched of1 the ignition of the car. (i i i) maintained the 'heel o1 the car on
the foot. and (i› ) used words indicating the intention of keeping the u heel in that
position. For our part. w'e cannot regard such conduct as mere omission or inactivity.
There was an act constituting a battery which at its inception was not criminal because
there u‘as no element of intention. but which became criminal from the moment the
intention was formed to produce the apprehension which was flowing from the
continuing act.

The fallac y of the appellant's argument is thai it seeks to eQuate the facts of this case
with such a case as where a motorist has accidentally run over a person and, that action
having been completed, fails to assist the victim with the intent that the victim should
suffer.

We would dismiss this appeal.

Bridge J.: I fully agree with my Lords as to the relevant principles to be applied. No
mere omission to act can amount to an assault. Both the elements of actus reus and mens
rea must be present at the same time, but the one may be superimposed on the other.
11 is in the application of these principles to the highly unusual facts of this case that I
have, with regret, reached a different conclusion from the majority of the court. 1 have
no sympathy at all for the appellant, who behaved disgracefully; but I have been
unable to find any way of regarding the facts which satisfied me that they amounted to
the crime of assault. This has not been for want of trying; but at every attempt I have
encountered the inescapable question: after the wheel of the appellant’s car had
accidentally come to rest on the constable's foot, what was it that the appellant did
which constituted the act of assault? However the question is approached, the answer
which I feel obliged to give is: precisely nothing. The car rested on the foot by its own
weight and remained stationary by its own inertia. The appellant's fault was that he
omitted to manipulate the controls to set it in motion again.

Neither the fact that the appellant remained in the driver's seat nor that he switched off
the ignition seem to me to be of any relevance. The constable's plight would have been no
better, but might well have been worse, if the appellant had alighted from the car leaving
the ignition switched on. Similarly, I can get no help from the suggested analogies.
If one man accidentally treads on another's toe or touches him with a stick, but
deliberately maintains pressure with foot or stick after the victim protests, there is clearly
an assault; but there is no true parallel between such cases and the present case. It is not,
to my mind, a legitimate use of language to speak of the appellant ‘holding’ or
‘maintaining’ the car wheel on the constable's foot ... The expression which
corresponds to the reality is that used by the justices in the Case Slated. They say.
quite rightly, that he "allowed" the wheel to remain.

With a reluctantly dissenting voice, I would allow this appeal and quash the appellant's
conviction.

Collins v Wilcock (1984) 3 Ail ER 374

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Two police officers on duty in a police car observed two women in the street wh.› appeared
to be soliciting for the purpose of’ prostitution. One of the women was known to the police
as a prostitute but the other. the appellant, was not a known prostitute. When the police
officers requested the appellant to get into the car for questioning she reluscd to do s
and instead
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86
 walked away from th.e car. One or tne officers. a policewoman. got out of the car
and follo ed the appel tant in order to question hcr regarding her Identity and conduct
and to
caution her, if she as suspected of being a prostitute. in accordance with the approved police
procedure for administering cautions for suspicious behaviour before charging a woman»
ith
being a prostitute. contrary to s 1 of the Street Offences Act 1959. The appellant refused
to speak to the policewoman and walked away, whereupon the policewoman took hold of the
appellant's arm to detain her. Tfie appellant then swore at the policewoman and scratched
the officer's arm with her fingernails. The appellant was convicted of assaulting a police
officer
in the execution of her duty, contrary to s 51(1) of the Police Act 1964. She appealed
against the conviction, contending that when the assault occurred the officer vas not
exercising her
power of arrest and was acting beyond the scope of her duty in detaining the appellant
by taking hold of her arm. The police contended that the officer was acting in the
execution of
her duty when the assault occurred because the officer had good cause to detain the
appellant for the purpose of questioning her to see whether a caution for suspicious
behaviour should
be administered.

Robert Golf LJ:

It may be convenient if at this singe we refer to the relevant provisions of the 1959 An.
Section 1 (1) provides as follows:

‘It shall be an offence for a common prostitute to toiler or solicit in a street or public place
for the purpose of prostitution.’

Section 1(3) provides:

'A constable may arrest without warrant anyone he finds in a street or public place and
suspects with reasonable cause, to be coinmining an offence under this section.'

We should also refer to the system of cautioning which is adopted by the police.

We were told that, in practice, the system of cautioning is carried into effect as follows. A
police officer who observes a woman in a street or public place, whom he believes to
be a common prostitute tottering or soliciting there for the purposes of prostitution, will
approach ner an‹i ask her for her name an‹i aciciress. i-raving Seen given it, Pte wiii cneck
Dy raaio with
the police station to ascertain whether there are any cautions on her record. If there are
none, he will caution her; if there is one, he will administer a second caution; and if there
are two, he will arrest her on suspicion of committing an offence under s I (I).

The system of cautioning, although intended to provide a warning, has the advantage that
it will generally avoid any argument on the question whether a woman charged with an
offence under s 1(1) is a 'common prostitute’, an expression apparently lacking statutory or
judicial definition or interpretation.

The magistrate then stated the following question for the opinion of the court:

‘The question for the consideration of the High Court is whether a Police Constable is
acting in the execution of her duty when detaining a w oman against her will for the
purpose of
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10@/

88
 questioning her regarding her identity and hcr conduct x'hiclz »'as such as to lead :he
fi'onstable to be licve shc may have been soliciting men.”

In considering this question, which is drawn in wide terms, we think it important to observe
that in this case it is found as a fact that the respondent took hold of the appellant by the
left ann to restrain her. Before considering the question as drawn, we think it right to
consider
» hether, on the facts found in the case, the magistrate could proper lj hold that the
respondent i ’as acting in the execution of her duty. In order to consider this question, it is
desirable that w'e should expose the underlying principles.

The law draws a distinction, in terms more easily understood bj phi[ologists persons who
the study of the structure, historical development, and relationships of a language or
languages] than by ordinary citizens, benveen an assault and a battery. An assault is an act
which causes another person to apprehend the infliction of immediate, unlawful, force
on his person; a battery is the actual infliction of unlawful force on another person. Both
assault and battery are forms of trespass to the person. Another form of trespass to the
person is false imprisonment, which is the unlawful imposition of constraint on
another's freedom of movement from a particular place. The requisite mental element
is of no relevance in the present case.

We are here concerned primarily with battery. The fundamenlal principle, plain
and incontestable, is that every person's body is in violate. lt has long been established
that any touching of another person, however slight, may amount to a battery.

But so widely drawn a principle must inevitably be subject to exceptions. For example,
children may be subjected to reasonable punishment; people may be subjected to the
lawful exercise of the power of arrest; and reasonable force may be used in self-
defence or for the prevention of crime. But, apart from these special instances where the
control or constraint is lawful, a broader exception has been created to allow for the
exigencies of everyday life. Generally speaking, consent is a defence to battery; and
most of the physical contacts of ordinary life are not actionable because they are
impliedly consented to by all who move in society and so expose themselves to the
risk of bodily contact. So nobody can complain of the jostling which is inevitable from
his presence in, for example, a supermarket, an underground station or a busy
street; nor can a person who attends a party complain if his hand is seized in
friendship, or even if his back is (within reason) slapped (see Tubervitle v Suvage (1669) 1
Mod Rep 3, 86 ER 684)

Although such cases are regarded as examples of implied consent, it is more

common nowadays to treat them as falling with its a general exception embracing all
physical contact which is generally acceptable in the ordinary conduct of daily life. We
observe that, although in the pasi it has sometimes been stated that a battery is only
committed where the action is ‘angry. or revengeful, or rude, or insolent’ (see I Hawk PC c
62, s 2), we think that nowadays it is more realistic, and indeed more accurate, to state the
broad underly ing principle, subject to the broad exception.

Among such forms of conduct, tong held to be acceptable, is touching a person for the
purpose of enp•aging his aflention, though of course using no greater degree of
physical contact than is reasonably necessary in the circumstances for that purpose.
84
 Sut a élistinction is drain ri beth een a touch to drain a inan‘s anention. svhich is generally
acceptable. and a physicai i esti'aini. » hich is not.

Furthermore, persistent touching to gain attention in the face of obvious disregard

may transcend the norms o1” acceptable behaviour, and so be outside the exception. We
do not say that more than one touch is never permitted; for example, the lost or distressed
may surely be permitted a second touch, or possibly even more. on a reluctant or
impervious sleeve or shoulder, as may a person who is acting reasonably in the exercise of
a duty. In each case, the test must be whether the physical contact so persisted in has
in the circumstances gone beyond generally acceptable standards of conduct; and the
answer to that question will depend on the facts of the particular case.

But, putting such cases aside, police officers have for present purposes no greater rights
than ordinary citizens. It follows that. subject to such cases, physical contact by a police
officer with another person may be unlawful as a battery, just as it might be if he was an ordinary
member of lhe public. But a police officer has his rights as a citizen, as well as his duties
as a policeman. A police officer may wish to engage a man's attention, for example if
he wishes
to question him. If he lays his hand on the man's sleeve or taps his shoulder for that
purpose. he commits no wrong. He may even do so more than.once; for he is under a
duty to prevent
and investigate crime, and so his seeking funher, in the exercise of that duty, to engage a
man's attention in order to speak to him may in the circumstances be regarded as
acceptable (see Donnelly v Jackman [1970] J All ER 987,).

But if, taking into account the nature of his duty, his use of physical contact in the face of
non co-operation persists beyond generally acceptable standards of conduct, his
action will become unlawful; and if a police officer restrains a man, for example by gripping his arm or
his shoulder, then his action will also be unlawful, unless he is lawfully exercising his power
of arrest. A police officer has no power to require a man to answer him, though he has
the
advantage of authority, enhanced as it is by the uniform which the state provides and
requires him to wear, in seeking a response to his inquiry. What is not permitted,
however, is the unlawful use of force or the unlawful threat (actual or implicit) to use
force and, excepting the lawful exercise of his power of arrest, the lawfulness of a
police officer's conduct is jqudged by the same criteria as are applied to the conduct
of any ordinary citizen of this

We now return to the facts of the present case. Before us, counsel for the respondent
police officer sought to justify her conduct, first by submitting that, since the practice of
J cautioning women found tottering or soliciting in public places for the purposes of
prostitution is recognised by s 2 of the 1959 Act, therefore it is implicit in the statute
that police officers
have a power to caution, and for that purpose they must have the power to stop and detain
women in order to find out their names and addresses and, if appropriate, caution them.

This submission, which accords» ith the opinion expressed by the magistrate, we are
unable to accept. The fact that the statute recognises the practice of cautioning by
providing a review procedure does not, in our judgment, carry with it an implication that
police officers have the power to stop and detain women for the purpose of implementing
the system of cautioning. If it had been intended to confer any such power on police
officers that power could and should, in our judgment, have been expréssly conferred by
the statute.
10 2 8S
text. counsel for the respondent submitted thai the urpos.- of the police officer was
simply to carr y out the cautioning procedure and that. having req•ard to her purpose, her
action could not be regarded as unla ful. Aqua in. we cannot accepl that submission. 11’ the
physical contact went be3 ond what is allowed by law, the mere fact that the police
officer has the laudable intention of carrying out the cautioning procedure in
accordance »'ith established practice cannot. we think, have the effect of rendering her
action lawful.

Finally, counsel for the respondent submitted that the question hether the respondent 4 as
or was not acting in the execution of her duty was a question of fact for the magistrate to
decide; and that he was entitled, on the facts found by him, to conclude that the
respondent had been acting lawfully. We cannot agree. The fact is that the respondent took
hold of the appellant by the left arm to restrain her. In so acting, she was not proceeding to
arrest the appellant; and since her action went beyond the generally acceptable conduct of
touching a person to engage his or her attention. it must follow, in our judgment, that her
action constituted a battery on the appellant, and was therefore unlawful. It follows that
the appellant's appeal must be allowed, and her conviction quashed.

We turn finally to the question posed by the magistrate for our consideration. As we
have already observed, this question is in wide general terms. Furthermore, the word
detaining’ can be used in more than one sense. For example, it is a commonplace of
ordinary life that one person may request another to stop and speak to him; if the
latter complies with the request, he may be said to do so willingly or unwillingly, and in
either event the first person may be said to be ‘stopping and detaining’ the latter.
There is nothing unlawful in such an act. If a police officer so ‘stops and detains’
another person, he in our opinion commits no unlawful act, despite the fact that his
uniform may give his request a certain authority and so render it more like I y to be
complied with. But if a police officer, not exercising his power of arrest, nevertheless
reinforces his request with the actual use of force, or with the threat (actual or implicit)
to use force if the other person does not comply, then his act in thereby detaining the
other person will be unlawful. In the former event, his action will constitute a battery; in
the latter event, detention of the other person will amount to false imprisonment.

Whether the action of a police officer in any particular case is to be regarded as lawful
or unlawfuJ must be a question to be decided on the facts of the case.

Wilson v Pringle (1986) 2 All ER 440

The plaintiff and the defendant were two schoolboys involved in an incident in a school
corridor as the result of which the plaintiff fell and suffered injuries. The plaintlff issued
a writ claiming damages and alleging that the defendant had committed a trespass to the
person of the plaintiff. In his defence the defendant admitted that he had indulged in
horseplay with the plaintiff and on the basis of that admission the plaintiff applied for
summary judgment under RSC Ord 14. The registrar refused to enter judgment but on
appeal by the plaintiff the judge held that the defendant had admitted that his act had
caused thc plaintiff to fall and in the absence of any allegation of express or implied
consent the defence amounted to an admission of battery and consequently an
unjustified trespass to the person. He accordingly gave the plainli ff leave to enter
Judgment. The defendant appealed to the Court of Appeal, contending that the essential
ingredients of trespass to the person were a deliberate touching, hosti) ity and an intention
to ini4ict injury, and there fc›re horseplay in which there v•as no
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 intention lo in II ict inj airy coilld not amount to a trespass lo the person. "I“h e piainii ff
contended that there merely had to be an intentional application ot’ force, such as
horseplay involved.
regardless of whether it was intended to cause injury.

Croom-Johnson Lj.

The action of trespass to the person, in. its sense where there is an assault to or a battery
of the plaintiff, is of great antiquity. The court has been referred to a number of
aulhorilies in which the ingredients constituting that tort have been discussed and
ruled on. In the early days the result of the case sometimes depended On whether a
particular issue had been raised in the pleadings. Even if it had been raised, it might not
amount to a defence to the action.
The technicalities were great. One can detect in the reports the development not only of the
action of trespass on the case (leading to the modern action of negligence) Bill also of
the action of trespass to the person itself.

lt is not possible, even if it were desirable, to ignore the distinction betw'een torts of
negligence and tons of trespass strictly so called. This distinction has to be borne in mind in
view of a submission made on behalf of the defendant, which would have had the
effect of blurring the 1 ines of demarcation between the two causes of action. In a situation
(such as the present) in which both causes of action are sought to be raised it is necessary
to be as precise as possibl• in seeing which of the facts giving rise to that situation are
approprlate to which cause of aCtlon.

The first distinction between the two causes of action where there is personal injury is
the clement of contact between the plaintiff and defendant, that is a touching of some
sort. In the action for negligence the physical contact (where it takes place at all) is normally though by
no means always unintended. In the action for trespass, to constitute a battery, it is
deliberate. Even so it is not every intended contact which is tortious. Apart from
special justifications (such as acting in self-defence) there are many examples in
everyday life where an intended contact or touch is not actionable as a Trespass. These
are not necessarily those (such as shaking hands) where consent is actual or to be
implied. They may amount’to one of the instances had in mind in Tubervitle v Sovnge
which take place in innocence. A modem instance is the batsman walking up the
pavilion steps at Lords after making a century; tie receives hearty slaps of
congratulation nn his bae.k. i-ie may not w*ni :*.•m. < me of them may be too heavy
for comfort. No one seeks his permission, or can assume he would give it if it were asked.
But would an action for trespass to the person lie?

Another ingredient in the ton of trespass to the person is that of hostility. The references
to anger sufficing to turn a touch into a battery [Cole v Turner) and the lack of an
intention to
assault which prevents a*gesture from being an assault are instances of this. If there is
hostite intent, lhat wil) by itself be cogent evidence of hostility. But the hostility
may be demonstrated in other ways.

The defendant in the present case has sought to add to the list of necessary
ingredients. He has submitted that before trespass to the person will lie it is not only the
touching that must be deliberate but the infliction of injury. The plaintiff s counsel, on the
other hand, contends that it is not the injury to the person which must be intentional, but
the act of touching or battery which precedes it: as he put it, what must be intentional is
the application of force and not the
87
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106
injury. In srippori of his contention. counsel for the defendant has rel ied on passa¿_es in
the judgments in toy /rr v Lriiiuirrg [ 195 9] 1 \11 ER 290. and letcmg C'ooyer [ 1964| 2 .4
I I ER 929.

In our view, the submission made by counsel for the plaintiff’ is correct. It is the act and not
the injury which must be intentional. An intention to injure is not essential to an action for
trespass to the person. It is the mere trespass by itself which is the offence.

That does not answer the question, what does entitle an injured plaintiff to sue for the tort
of trespass to the person? Reference must be made to one funher case: lFilliants v
Hiintphre y (12 February 1975, unreported), decided by Talbot J. There the defendant, a boy
just under 16, pushed the plaintiff into a ssvimmin9 pool and caused him physical
injury, The judge found the defendant acted negligently and a 'arded damages. But there
was another c)aim in trespass. Talbot J rejected the submission that the action would not lie
unless there was an intent to injure. He held that it was sufficient. if the act was
intentional that there was no justification for it.

What, then, turns a friendly touching (which is not actionable) into an unfriendly one
(which is)?

A more recent authority is Collins v Wilcock 1984] 3 All ER 374. This case was not cited
to the judge. It had not been reported at the time of the hearing of the Ord 14 appeal. The
facts were that a woman police officer, suspecting that a woman was soliciting
contrary to the Street Offences Act 1959, tried to question her. The woman walked
away, and was followed by the police officer. The officer took hold of her arm in order
10 restrain her. The woman scratched the officer's arm. She was arrested, charged with
assaulting a police officer in the execution of her duty, and convicted. On appeal by case
staled, the appeal was allowed, on the ground, that the officer had gone beyond the
scope of her duly in detaining the woman in circumstances short of arresting her. The
officer had accordingly committed a battery.

The judgment of the Divisional Court was given by Robert Goff LJ).

This rationalization by Robert Golf LJ draws the so-called "defences' to an action for trespass

authority, and statutory authority arc some examples) under one umbrella of a general
exception embracing all physical roman which is generally acceptable in the ordinary
conduct of daily life". It provides a solution to the old problem of what legal rule allows
a casualty surgeon to perform an urgent operation on an unconscious patient who is
brought into hospital. The patient cannot consent and there may be no next of kin
available to do it for him. Hitherto it has been customary to say in such cases that consent
is to be implied for what would otherwise be a battery on the unconscious body; it is
belter simply to say thal the surgeon's action is acceptable in the ordinary conduct of
everyday life, and not a battery. It
»'ill doubtless be convenient to continuc to the labels of the 'defences' to the facts of any
case where they are appropriate. But the rationalization, explains and utilizes die
expressions of judicial opinion which appear in the authorilies. It also prevents the
approach to the facts, which, with respect to the judge in the present case, causes his
judgment in read I ike a ruling tin a demurrer in the days of special pleading.

88

106
 everiheless, it still remain:s to indicate what is to be provecl by a plainti ff '.vho bl’irlg5
an action for banerj . Robert Goff LJ's judgment is illustrative of the considerations
which
iinderlie such an action. but it is not practicable to define a ban cry as 'physical contact
which is not generally acceptable in the ordinary conduct of daily life.

I n our view the authorities lead one to the conc fusion that in a battery there must be
an intentional touching or contact in one form or another of the. plaintiff by the defendant.
Thai touching must be proved to be a hostile touching.. That still leaves unanswered the
question, when is a touching to be called hostile. Hostility cannot be equaled with
ill-will or malevolence, it cannot be governed by the obvious intention shown in acts
like punching, stabbing or shooting. It cannot be solely governed by an expressed
intention, although that may be strong evidence. But the element of hostility, in the
sense in which it is now to be considered, must be a question of fact for the tribunal of
fact. It may be imported from the circumstances.

Although we are all entitled to protection from physical molestation, we live in a crowded
world in which people must be considered as taking on themselves some risk of injury
(where
it occurs) from the acts of others which are not in themselves unlawful. If negligence
cannot be proved, it may be that an injured plaintiff who is also unable to prove a
battery, will be without redress.

In otlr judgment the judge who tried the RSC Ord 14 proceedings took too narrow 3
view of What has to be proved in order to make out a case of trespass to the
person. It will be apparent that there are a number of questions which must be
investigated in evidence. Accordingly, we would allow this appeal.

B. Assault
The act of pulling another, person in reasonable fear or apprehension of an immediate
buttery by menus of an net amounting to nn attempt or threat to commit a battery
amounts to an actionable assault. The tort is remarkable, for it ”remains the only
instance in English jurisprudence of a mere offensive sensation unaccompanied by any
untoward' psychosomatic symptoms, let atone external trauma, giving a cause of action
for damages. Probably mere words do not constitute an assault, however insulting or
even men.acinq•; the intent to do violence must be expressed in threatening acts, no1
merely in threatening speech. But most of the cases come from an age when the moans
of communication and of inflicting violence were less developed than today, and so
a, modern court might hold some oral threats
actionable.

There need be actual intention or power, to use violence, for it is enough if the plaintiff
on reasonable grounds believes that he is in danger of it. Thus it is actionable to point a gun
at a man in a threatening manner, even though to the knowledge of the defendant, but, not
to that of the plaintiff, it is unloaded.” But if there is no reasonable fear there is no
assault: as, for example, when a gun is pointed at a man behind his back. Mere passive
obstruction does not constitute an assault, although if the plaintiff is thereby hindered from
going about his lawful occasions he may use reasonable force by way of self-help.

89
Assault of’ course requires no contact because its essence is conduct that lends the plainti
ft’ to apprehend the application of force. In the majorii; of cases an assault precedes a
battery . perhaps by only a very brief interval. but there are examples of battery in which
the plainer If has no opportunity of experiencing any apprehension before the force is
applied. for example a blow from behind inflicted by an unseen assailant. Just as there can
be a battery without an assault, so also there can be an assault without a battery. as
here the defendant has no intention of carrying through his threateninp• gesture but
knows that the plaintiff is unaware of this. S iinilarly if the blo» is intercepted or prevented
by some third person.

It is irrelevant that the plaintiff is courageous and is not frightened by the threat or that
he could easily defeat the defendant's attack. apprehend" is used in the sense of
"expect". The plaintiff iriust, however, have reason to apprehend that the defendant has
the capacity to carry out the threat immediately. It would not be an assault for the
defendant to wave his fist (as opposed to pointing a gun) at the plaintiff on a passing
train, nor where the plaintiff was under the effective protection of the police.

For many years it was said that some bodily movement was required for an assault and
that threatening words atone were not actionable .This has been rejected by the House of
Lords in R v. 7re/nnr/, d a criminal case, but there seems no reason to doubt that the
reasoning also applies to tort. Hence threats on the telephone may be an assault
provided the plaintiff has reason to believe that they may be carried out in the
sufficiently near future to qualify as "immediate". In fact, the court in Ireland went
further and held that an assault could be committed by malicious silent telephone calls.
The defendant's purpose was to convey a message to the victim just as surely as if he
had spoken to her. "The victim is assailed by uncertainty about his intentions. Fear may
dominate her emotions, and it may be fear that the caller's arrival at her door may be
imminent. She may fear the possibility of immediate personal violence".

A civil action lies for an assault, and criminal proceedings may also be taken against
the wrong-doer. The fact that the wrong-doer has been fined by a criminal Court for assault
is no bar to a civil action against him for damages. The previous conviction of the wrong-
doer in a criminal Court is no evidence of assault. The factum of the assault must be
tried in a civil Court, which is not bound by conviction or acquittal in criminal proceedings.
A plea of guilty in a criminal Court may, but a verdict of conviction cannot be
considered in evidence in a civil Court.

Stephens v Myers Nisi Prius (1830) 4 C & P 349

Assault. The declaration stated that the defendant threatened and anempted to assault the
plaintiff. Plea- Not guilty.

It appeared, that the plaintiff was acting as chairman, at a parish meeting, and sat at the
head of a table, at which table the defendant also sat, there being about six or seven
persons between him and the plaintiff. The defendant having, in the course of some angry
discussion. which took place, been very vociferous, and interrupted the proceedings of
thc meeting, a motion was made, that he should be turned out, which was carried by a
very large majority.

* [1997] 3 WLR 534

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 L‘pon this. the defendant said, he w ould ra!her pail1 the chairman out of 'he cha ir. than
be turned out of the room; and immediately ad x'anced w ith his fist clenched
tooards the
chairman, but u as stopped by the churchwarden, who sat next but one to the chairman, at
a time when heas not near enough for any blo» he rn ight have meditated to have reached
the
chairman. but the w'itnesses said, that it seemed to them thai he was advancing with
an intention to strike the chairman.

Spankie, Serjt., for the defendant, upon this evidence, contended that no assault had
been commited, as there was no power in the defendant, from the situation of the
parties, to execute his threat, there was not a present ability, he had not the means of
executing his intention at the time he was stopped.

TINDAL, C. J., in his summing up, said : It is not every threat, when there is no actual
personal violence, that constitutes an assault; there must, in all cases, be the means
of carrying the threat into effect. The question J shall leave to you will
be, whether the
defendant was advancing at the time, in a threatening attitude, to strike the chairman, so
that his blow would almost immediately have reached the chairman if he had not been
stopped ; then, though he was not near enough at the time to have struck him, yet, if he
was advancing with that intent, I think it amounts to an assault in law. If he was so
advancing that, within a second or two of time, he would have reached the plaintiff, it
seems to me it is an assault in law. If you think he was not advancing to strike the
plaintiff, then only can you find your verdict for the defendant ; otherwise you must
find it for the plaintiff, and give him such damages as you think the nature of the case
requires. Verdict for the plaintiff—Damages, 1s.

READ v. COKER

[Common Pleas (1853) 13 C.B. 850; 22 L.J.C.P. 201; 21 L.T.(o.s. ) 156- 17 Jur 990; I W.R.
413; 138 E.R. 1437]

The plaintiff was a paper-strainer in financial difficulties and in arrears with his rent.
The defendant purchased his equipment and paid the rent under an agreement which
secured to the plaintiff a weekly allowance. One day the defendant told the plaintiff
to leave they premises, and when the plaintiff refused, the defendant collected
together some of his workmen who mustered round the plaintiff, tucking up their
sleeves and aprons. and threatened to break the plaintiffs neck if he did not leave.
The plaintiff did leave, and now
brought an action of trespass for assault.

At the trial Talfourd J. left, it to the jury to say whether there was an intention on the part of
the defendant to assault, and whether the plaintiff was apprehensive of personal violence if he
did not retire. The jury found for the plaintiff; damages one farthing. The defendant asked for
a new trial on the grounds of misdirection by the judge.

Byles Serjt. (arguendo): That which was proved as to the first count clearly did not amount
to an assault. [JERVIS, C. J. It was as much an assault as a sheriffs officer being in a room
with a man against whom he has a wril, and saying to him, " You are my prisoner,” is an
arrest.] To constitute an assault. there must be something more than a threat of violence. An
assault is thus de- fined in Buller's Nisi Prius, p. 15: " An assault is an attempt or offer, by

l0\D
force or violence, to do a corporal hurt to another, as by pointing a pitchfork at him, when
91

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stanciing 4'ithin reach, presenting a gun at hile [within shooting distance] , dra winp• a s»
r›rd. and avin_• it in a menacing manner, &c. The Queen v. Ingram. 1 Salk. 384. But no
› ’r›rds can amount to an assault. though perhaps the y may in some cases serve to explain
a doubtful action: I Hawk. P. C. 133; as if a man ere to lay his hand upon his sword,
and say, ' If it were not assize-time, he would not take such language,' the ’ords would
prevent the action from beinp• construed to be an assault. because they sho» he had
no intent to do him any corporal hurt at that time: Tiibervitle i. Sci›•cige." So. in Selwyn's N
isi Pri us (llth ed.). 26, it is said: ” An assault is an attempt, with torce or violence, to do a
corporal lnjury to another. as by holding up a flat in a menacing manner, striking at
another with a cane or stick. though the party striding may miss his aim; drawing a s
'ord or bayonet; throwing a bottle or glass with intent to wound or strike;. presenting a
gun at a person who is within the distance to which the gun will carry; pointinp• a
pitchfork at a person who is w'ithin reach (Genner v. Sprii Ice) . or by any other similar act,
accompanied with such circumstances as denote at the time an intention, coupled with
a present ability (see Stephens v. Myets), of using actual violence against the person of
another." So, in 3 Bl. Comm. 120, an assault is said to be ” an attempt or offer to beat
another, without touching him; as if one lifts tip his cane or his fist in a threatening
manner at another, or strikes at him but misses him : this is an assault, insulin's,
which Finch (L. 202) describes to be ' an unlawful setting upon one's person.' '
[JERVIS, C. J. If a man comes into a room, and lays his cane on the table, and says
to another, ” If you don't go out I will knock you on the head," would not that_be an
assault ?] Clearly not : it is a mere threat, unaccompanied by any gesture or action
towards carrying it into effect. The direction of the learned judge as to this point was
erroneous. He should have told the jury that to constitute an assault there must be an
attempt, coupled with a present ability, to do personal violence to the party; instead of
leaving it to them, as he did, to say what the plaintiff thought, and not what they (the
jury) thought was the defendant's intention. There must be some act done denoting a
present ability and an intention to assault.

(C) False Imprisonment

A false imprisonment is complete deprivation of libeny for any time, however short, without
lawful cause.

"azi. . smm••i.•Wzzc .O izW WczzW• in.Jzz@ WWc c•zm t mmc. W••sc Wz m iiimTs'D •sWW• k ', ¥.'â2RU3H1 1& WS UI bllm
EQU, field, or in the stocks, or in the cage in the streets or in a man's own house, as well as in
the common goals: and in all the places the party so restrained is said to be a prisoner so
long as he hath not his liberty freely to go at all times to all places whither he will without
bail or mainprise or otherwise.

The prisoner may be confined within a definite space by being put under lock and key or
his movements may simply be constrained at the will of another. The constraint may be
actual physical force, amounting to an assault, or merely the apprehension of such force,
or it may be submission to a legal process. A mere partial interference w ith freedom
of locomotion does not amount 1 ojm imprisonment. If a road is blocked so thai a man
is prevented from exercising a right of way and he is compelled to turn back, it cannot
be said that he has thereby been made a prisoner.

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110
 It is c.ot necessary that the plainer fi” is aiv are of his imprisonment at the tilre. thus. a
person may be Falsei§ imprisoned white drunk or asleep or white he is a lunatic. False
imprisonment
as a form of trespass to the person is actionable per se because as Lord Griffiths; put it in
Murrciy v. Minislrv of Defence.’ ”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.'

False Imprisonment is a total restrain of the liberty of a person, for, however, shori a
time, without lawful excuse. The word 'false' means 'erroneous" or 'wrong'.

To constitute this wrong two things are necessary:—

(1) The total restraint of the liberty of a person. The detention of the person may be
either-(a) actual. that is, physical. e.g. laying hands upon a person; or (b) constructive, that.
is by mere show of authority, e.g. by an officer telling anyone that he is wanted and making him
accompany.

(2) The detention must be unlawful. The period for which the detention continues
is immaterial. But it must not be lawful.

' There is no false imprisonment where the plaintiff consents to the defendant's order, but he
is not to be taken as consenting simply because he does not resist by force. A difficult line
must be drawn between consent on the one hand and peaceful but unwilling submission to
express or implied threats of force or asserted legal authority (whether valid of not) on the
other.

The wrong of false imprisonment is in most cases that of assault also, but not necessarily
so, ldoking a man up in a room in which he already is by his own act Amounts to
false imprisonment but is no assault. Even if the plaintiff fails to prove some of the
ingredient of this tort he may have a special action on the case for the impingement of
his liberty, or an action for 'defamation, malicious prosecution, misfeasance in a
public office, or the intentional infliction of mental distress. He can also recover his
liberty by a writ of habeas
' corpus.

The imprisonment

To constitute the wrong in question there need be no actual imprisonment in the

ordinary sense—i.e. incarceration. It is enough that the plaintiff has been in any manner
completely deprived of his personal liberty, for anytime, however short.

An arrest is complete if a person is touched and informed of the reason for his arrest; it is
not necessary for him to be brought under physical control. Whether 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. An arrest is a state of fact and not a legal consent.

Knowledge Of pIain›n

7
[1988] 2 AII ER 521
lll
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112
It had Seen he)d in fJroi›iger i' Ni/I that imprisonment is pt›ssiblc even if the plaintiff is
too it1 to move in the absence o1 an y restraint. In I/eerizig 8 casc the court went catch
further by holding thai the tort is comiritied oven if the plaintiff did not know that he
was being detained. The facts were that the plaintiff, being suspected of stealing a keg of
varnish from the defendants, his employers, was asked by two of their poiice to go w
ith them to the company's office. He assented and at his suggestion, they took a short cut
there. On arrival he was taken or invited to go to the waiting-room, the t 'o policemen
remaining in the neighborhood. In an action tor false imprisonment the defence ii as
that lhe plaintiff’ was perfectly free to go where he liked. that he kne\v it and that he did
not desire to go away. But it was held by a majority of the Coun of Appeal that the
defendants where liable because the plaintiff from the moment that he came under the
influence of the police as no longer a free man. Atkin L.J. said: "It appears to me that a
person could be imprisoned without his knowing it. I think a person can be imprisoned
white he is asleep. white he is in a slate of drunkenness, white he is unconscious, and
white he is a lunatic. . .. Gf course the damages might be diminished and would be
affected by the question whether he was conscious of it or not.” The learned Lord Justice's
ground for this opinion was that, although a person might not know he was imprisoned,
his captors might be boasting elsewhere that he was. This point might be regarded as
more relevant to defamation than to fa)se imprisonment, but Atkin L.I.'s view has been
approved, obiter, by the House of Lords in an appeal from Northern Ireland, Murruy v.
Ministry of Defence though with the .rider that a person who is unaware that he has been
falsely imprisoned and has suffered no harm can normally”' expect to recover no more
than nominal damages.

Restraint must be complete

The too is not committed unless motion be restrained in every direct ion. In Bird '. done.r
the defendants wrongfully enclosed part of the public footway on Hammersmith Bridge, put
seats in it for the use of spectators of a regatta on the river; and charged for admission
to the enclosure. The plaintiff insisted on passing along this part of the footpath, and
climbed over the fence of the enclosure without paying the charge. The defendants
refused to let him go forward, but he was told that he might go back into the carriage
way and cross to the other side of the bridge if he wished. He declined to do so and
remained in the enclosure for half an nour. i he ciefen‹iants were hei‹i not to have
commineci Raise, imprisonment. W hat win amount to a complete restraint must be a
question of degree. A person would plainly be imprisoned if locked inside a large
building, even though he had full freedom to roam around inside it.

Means of escape

If a person has the means of escape, but does not know it, it is submitted that his detention
is nevertheless false imprisonment unless any reasonable man would have realized that he
had an available outlet. Thus, if it pretend to turn the key of the door of a room in which
you are' and take away the key, it would seem unreasonable if you made no attempt to see
whether the door was in fact locked. A more difficult case is that in which you have a
duplicate key in

8
132 ER 769 QB
{184S) 7 QB 742
94 lll
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 your pocket but has‘e 1or*o1ten i ts existcnce. A reasonabie man may suffer f\-om a lapse
of memory.
lnsisting upon going on footway.—In Bii-rl i’. Jones a’0 part of a bridge. _•eneral1j used
as a footway, was appropriated for seats to view a boat race. The plaintiff insisted
upon passing along the part so appropriated. and attempted to climb over the
enclosure. The defendant pulled him back but the plaintiff succeeded in climbing over.
Two policemen were then stationed by lhe defendant to prevent him from passing
onwards in the direction in which he wished to go The plaintiff was told to go back into the
carriage way and proceed to the other side of the bridge, if he pleased. The plaintiff refused
to do so, and remained where he was so obstructed, about half an hour. It was held that
this was no imprisonment.

Lawful delention.—A woman suspected of theft in a large department store was

arrested outside by store detectives and taken back into the shop where the
managing director considered the case and, having decided to prosecute, immediately, sent for lhe
police
officers to whom she was given in charge. It was held that, inasmuch as she was not
detained beyond a reasonable time for the managing director to make his decision, the
owners of the
shop were not liable in damages for false imprisonment.

Robinson v Balmain New Ferry Co Ltd. ((1910] AC 295 Privy Council]

A ferry company had only one point of payment; passengers disembarking had to pay
there for their journey, passengers wishing to travel in the opposite direction paid on
enlry to the terminal. The plaintiff entered upon payment of one penny then decided not to
travel. He was
asked to pay another penny in order to leave. He refused and his way was obstructed for
some time before he was able to squeeze & past the turnstile. He sued for false
imprisonment. The
defendants succeeded.

Loxd Toreburn LC: '.... in the circumstances admitted it is clear to their Lordships that there
was no false imprisonment at all. The plaintiff was merely called upon to leave the
wharf in the way in which he contracted to leave it. There is no law requiring the
defendants to make the exit from their premises gratuitous to people who come there
upon a definite contract which involves their leaving the wharf by another way; and
the defendants were entitled to resist a forcible passage through their turnstile. The
question whether the notice which was affixed to these premises was brought home to
the knowledge of the plaintiff is immaterial,
because the notice itself is immaterial. When the plaintiff entered the defendants'
premises there was nothing agreed as to the terms on which he might go back,
because neither party contemplated his going back. When he .desired to do so the
defendants were entitled to impose a reasonable condition before allowing-him to pass
through the if tUmstile from a place to which he had gone of his own free will. The
payment of a penny was a quite fair condition, and it he did not choose to comply with it
the defendants were not bound to let him through. He could proceed on the journey he
had contracted for...’

Continuance of iiiiprisonment. Anyone who helps to continue a wrongful detention is

guilty of false imprisonment, though he be not responsible for the original wrong. If a
prisoner in lawful custody acquires a right to his discharge, the failure of the person

114
who has him in

" [1845] 7 QB 742

95

113 y\’
charge to sct him free constitutes a false in\prisonnJent. thu stattitc and rules ›x'hich provide
to remission of part of the sentence of imprisonment for guod conduct do net confer and
legal right upon the prisoner tn be discharged before the cnd of the original sentence. and
an allegation that the plaintit”f has been arongftill; deprived of remission i)l not support an
acticn for false imprisonment.

Imprisonment in unauthorized places or conditions. It as held in Cobbell v. Grey” that

to hold a prisoner in a part of a prison iv'here men in this category should not be
confined constituted false imprisonment. A debtor should not be imprisoned with felons.
Since 1952, section 12(1) of the Prison Act 1952 authorizes the confinement of any
prisoner in any prison. Categories between. and within prisons. were abolished. In R. v.
Deput y Governor of Pm khurst Pt ison, en p. Hague'!’ the House of Lords held thai confinerrient
within a prison in conditions, or circumstances, not authorized by the Prison Rules
cannot constitute false imprisonment. Their Lordships unanimously held that breach of
the 1965 Prison Rules could not give rise to an action for breach of statutory duty.

R. v. Deputy Governor of Parkhurst Prison, ex p. Hague Weldon v Home Office

[1991] 3 All ER 733

In two separate cases the question arose whether a convicted prisoner who had been
restrained in a way not permitted by the Prison Rules 1964 white serving his sentence had
a cause of action in private law for damages against the prison governor or the Home Office
for breach of statutory duty or false imprisonment, and if so, in what circumstances such a
cause of action was available to the prisoner.

In the first case, the deputy governor then in charge of the prison where the appellant
was serving sentence of 15 years' imprisonment decided that the appellant was a trouble
maker and ordered his transfer to another prison and that he be held there in segregation
from other prisoners for 28 days pursuant to the provisions of a prison department
instruclion. The effect of segregation was that the appellant was denied, the benefit of
association with other prisoners and various other privileges enjoyed by tong-term
prisoners who were subject to the normal prison regime.

1 tte appellant sought judicial review of the decisîon to transfër and segregate him and to
continue the segregation for 28 days, and damages for false imprisonment. The Divisional
Court dismissed his application and claim. He appealed to the Court of Appeal, which

" allowed his appeal in part, declaring that the procedure which led to the appellant's
segregation was not lawful under r 43 but refusing to grant ceriiorari to quash the relevant
orders. The courl further held that an action for damages for false imprisonment did not
lie since the appellant had not been detained in intolerable conditions. The appellant
appealed to the House of Lords against the dismissal of his claim for damages for false
imprisonment and furth.er claimed damages for breach of the 1964 rules.

Jn the second case, the respondent brought an anion in the county court claiming that
white he was serving a four-year sentence in 1984 prison officers, without lawful authority,
dragged him out of his cell to a cell in the punishment block and then removed him to
a strip cell

" {1849] 4 Ex 729

114
'* [1991] 3 A(I ER 733
96

113 y\’
 where his c lothes were taken morn him and he was forced to remain. until the follo»
ing morning. He brought an action against the Home Officc c1aim ing darna•_es for assault
and
battery and fake imprisonment. 3 )ie Home Office applied to strike out the plaintiffs claim for
false imprisonment on the ground that it disclosed no reasonable cause of action brit the
registrar dismissed the application, holding thai the aI legations of false imprisonment had
not been shown to be unarguable and should therefore go to trial. Appeals by the Home
Office
were successively dismissed by the judge and the Court of Appeal. The Home Office
appealed to the House of Lords.

LORD BRIDGE OF HARWICH. My Lords, there are Evo appeals before the House, I
shall refer to them as Hague's case and Weldon's case respectively. They raise important
questions with respect to the rights of convicted prisoners.

On this part of the case Mr Sedley has constructed an elaborate argument resting on a
premise which he describes as ‘the ground rule' for ascertaining whether a plaintiff has
a cause of action for breach of statutory duty. It all depends, he submits, on whether
he belongs to a class which the statutory provision was intended to protect and has
suffered a detriment in
I
consequence of a breach of the duty of a kind from which the provision was intended
to protect him. If so, then in the absence of any other specific provision in the statute, such
as a
criminal penalty, to enforce performance of the statutory duty, it necessarily follows,
Mr Sedley submits, that the law affords a remedy in damages for its breach. Hence the
question the statutory construction is not the broad question whether an intention to give a
cause of action can be inferred from the provision in question read in its context, but
the narrower question whether the provision is intended to protect the interests of
class of which the plaintiff is a member. This then leads on to the conclusion that
certain provisions of the Prison Rules 1064, which were intended in protect the interests of
prisoners, and in particular r 43(2) which was intended to protect prisoners from unlawful
segregation, must give rise to a muse of action in favour of any prisoner who suffers a
detriment from a breach of die duty imposed.

I believe the fallacy in this argument' is that it relies on authorities relating to statutory
duties imposed for ».o other purpnse than. to pr :ert vnri us r!asses of persons from
the rusk of personal injury to which they are exposed and seeks to apply certain dicta in
these authorities to a totally different statutory context. Thus Groves v Lord Wimborne
'was concerned with the question whether a breach of the duty to fence dangerous
machinery imposed by s. 5(4) of The Factory and Workshop Act, 1878 gave a cause of
action to a workman thereby injured notwithstanding the criminal sanctions also imposed
by the statute for breach of the duty.

Mr. Sedley relied on all these passages and in particular on the references in the
passages sited from Lord Wright and Lord Kinnear to the common law as the source of
the plaintiff's rights. But the context in each case makes clear that the role of the common
law is simply to make effective the benefit which the legislature intends in confer on the
particular plaintiff of protection from danger of a particular kind, in each of the cases cited
the danger of personal injury. I do not think one escapes by this route from the
fundamental question: Did the

120
" [1898) 2 QB 402
97

115 *’
legislature intend to conl”er on the plainiitl a cause ot ac!:'on for breach of statritoy . duty?
bj transposing it into the question: 'Did the ie _ is lature intend to confer on the plaintiff"
protection from damage of a kind for x'hich. ii the protection is not effectively provided,
the common law will al'1ord a monetary remedy?” \Vhen asked in relation to
enactments of the find to which the authorities relied upon refer the two questions are
really one and the same. When asked in relation to enactments ot’ such a very different
kind as the Prison Ruies, the second form of the question neither avoids nor illuminates the
problem of answering the first.

The Ful ter citation of authority on this point in the speech of my noble and learned
friend Lord Jauncey of Tullichettle. which I gratefully adopt and need not repeat, amply
supports the conclusion that, like any other question of statutory construction, the question
whether an enactment gives rise to a cause or action for breach of statutory duty is a
question of ascertaining the intention of the legislature.

In Becker x• Horiie Office' both 1.ord Denning IViR and Edmund Davies LJ expressed their
conclusion that a breach of the Prison Rules 1964 creates no civil liability in equally general
terms. lvlr. Sedley submits that such a general approach is erroneous and that each
provision in the rules must be considered separately. Whitst I do not accept this criticism of
the earlier authorities, I do accept that we may properly be invited in asking the
question whether the breach of a particular provision of the rules gives rise to a cause
of action to examine that provision in its context. Adopting that course, I can find nothing
in r 43 or in any context that is relevant to the construction of r 43 which would support the
conclusion that it was intended to confer a right of action on an individual prisoner. The
purpose of the rule, apart from the case of prisoners who need to be segregated in their
own interests, is to give an obviously necessary power to segregate prisoners who are
liable for any reason to disturb the orderly conduct of the prison generally. The rule is a
purely preventive measure. The power iS to be exercised only in accordance with the
procedure prescribed by sub r (2). But where the power has been exercised in good faith,
albeit that the procedure followed in authorizing its exercise was not in conformity with r
43(2), it is inconceivable that the legislature intended to confer a cause of action on the
segregated prisoner.

Pulse imprisonment

An action for false imprisonment is an action in personant. The tort of false imprisonment has
two ingredients the fact of imprisonment and the absence of lawful authority to justify it. In
Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44 at 54 Atkin LJ said that
'any restraint within defined bounds whic)i is a restraint in fact may be an imprisonment.
Thus if A imposes on B a restraint within defined bounds and is sued by B for false
imprisonment, the action will succeed or fail according to whether or not A can justify the
restraint imposed on B as lawfut. A child may be lawfully restrained within defined
bounds by his parents or by the schoolmaster to whom the parents have delegated
their authority. But if precisely the same restraint is imposed by a stranger without
authority, it will be unlawful and will constitute the tort of fa!se imprisonment.

1 shall leave aside initially questions arising from the situation where a convicted
prisoner serving a sentence is restrained by a member of the prison staff acting in
bad faith, by a

" [1972] 2 AII ER 676,

98
120
I n iii y opinion, to hold a prisoner entitled to damap•es for UI se imprisonment on the
ground that he has been subject to a restraint upon his movement w hich was not in
accordance w ith the Prison Rules would be. in effect, to confer on him under a different
lep•al label a cause of action for breach or" statutory duty under the rules. I laying reached
the conclusion that it as not the intention of the rules to confer such a right, I am that
the right cannot properly be asserted in the alternative guise of a claim to damages for
false imprisonment.

There remains the question whether an otherwise lawful .imprisonment may be

rendered unlawful, by reason only of the conditions of detent ion.

1 sympathize entirely with the view that the person lawfully held in custody who is
subjected to intolerable conditions ought not to be left without a remedy against his
custodian. but the proposition that the conditions of detention may render tie detention
itself unlawful raises formidable diffiCUhies. lf the proposition be sound, the corollary
must be that when the conditions of detention deteriorate to the point of intolerability,
the detainee is entitled immediately to go free. It is impossible, 1 think, to define with
any precision what would amount to intolerable conditions for this purpose. McCullough I
understandably and perhaps, wisely abstained .from any attempt at definition ln Ex p
Nahar... The examples given by Ackner LJ of a flooded or gas-filled cell are so extreme
that they do not, with respect, offer much guidance as to where the line should be
drawn. The law is certainly left in a very unsatisfactory state if the legality or otherwise
of detaining a person who in law is and remains liable to detention depends on such an
imprecise criterion and may vary from time to time as the conditions of his detention
change.

The logical solution to the problem, I believe, is that if the conditions of an otherwise
lawful detention are truly intolerable, the law blight to be capable of providing a
remedy directly related to those conditions without characterizing the fact of the detention
itself as unlawful. 1 see no real difficulty in saying that the law can provide such a remedy.
Whenever one person is lawfully in the custody of another, the custodian owes a duty of
care to the detainee, If the custodian negligently allows, or a fortiori, if he deliberately
causes, the detainee to suffer in any way in his health he will be in breach of that duty.
But short of anything that could properly be described as a physical injury or an

impairment of health, if a person lawfully

discomfort which can properly be described as intolerable, I believe that could and should
be treated as a breach of the custodian's duty of care for which the law should award
damages. For this purpose it is quite unnecessary to attempt any definition of the
criterion of intolerability. lt ivou Id be a question of fact and degree in any case which
came before the court to determine whether the conditions to which a detainee had been
subjected w'ere such as to warrant an award of damages for the discomfort he had
suffered, In principle I believe it is acceptable for the law to provide a remedy on this basis,
but that the remedy suggested in the Nahar and Midlv›!eeek cases is not. In practice the
problem is perhaps not very likely to arise.

COlt Cl USIO II

For the reasons I have piven I conclude that a claim for damages cither for breach of
statutoq duty or for false imprisonment is not sustainable in either of the cases before
the House. I

118
100
 woi!ld accordingly dism iss the appeal in Hague's case. In W’e1don‘s case I would allow the
appeal.

Arrest by Police Officers

Section 41(1) of the Code of Criminal Procedure, 1973 provides that a Police Officer
may arrest a person ”who has been concerned in any cognizable offence, Or against
whom a
reasonable complaint has been made, or credible information has been received or a
reasonable suspicion exists of having been so concerned.” The existence of a
reasonable suspicion that the person to be arrested is concerned in any cognizable
offence is the
minimum requirement before an arresl can be made by a police Officer.

There is a distinction between reasonable suspicion which is the foundation of the power to
arrest and prima facie proof. *Suspicion in its ordinary meaning is a state of conjecture
or surmise when proof is tacking. 1 suspect what I cannot prove. Suspicion arises at or near
the starting point of an investigation of which the obtaining of prima facie proof is the
end.” Reasonable suspicion must exist at the time of arrest. lf it arises subsequent to the
arrest as a result of questioning the accused, the arrest arid detention till that stage
would be invalid giving rise to a claim for damages for false imprisonment for that
period.

Even when the police has a reasonable suspicion that a person is concerned in a cognizable
offence, it does not follow that he must be arrested and the police has a discretion which
has
to be reasonably exercised. As observed by LORD Dl PTOCK the exercise of the executive
discretion to arrest or not to arrest conferred by statutory words ”may arrest“ can
be
q¡iestioned in a Court of law on the principles laid down by Lord GREENE. M.R. in
Associated Provincial Picture Houses Lld. v. Wednesbury Corporation'5, popularly known as
the Wednesbury principles. These principles are that the person on whom the discretion
is conferred must exercise it in good faith for furtherance of the object of the statute, he
must not proceed upon a misconstruction of the statute; and he must take into account
matters relevant for exercise of the discretion, and he must not be influenced by irrelevant
matters.

It is submitted that these principles equally apply to an arrest under section 41(h) often
Code of Criminal Procedure, 1973. Indeed the Supreme Court in a recent case- laid down
stricter
requirements for making an arrest. Tire Court said that ”no arrest can be-made because it
is lawful for the police officer to do so. The existence of the power 6£ arrest is one
thing. The
I justification. for the exercise of it is quite another. The Court further observed: "No
arrest should be made without a reasonable satisfaction reached after some investigation
as to the genuineness and bona fides of a complaint and a reasonable belief both as to
the person's complicity and even so as to the need to effect arrest. There must be
some reasonable justification in the opinion of the officer effecting the arrest that such
arrest is necessary and justified. Except in heinous offences, an arrest must be avoided
if a police officer issues notice to person to attend the station house and not to leave
station without permission would do. Reasons for arrest must 6e reflected in the case diary
and a re)ative or friend of the person arrested must also be informed of the arrest and the
place of detention.
120
‘* [1947J 1 KB 223
101

119
Another important requirement ivhiie making an arrest as already seen is that.. the .person
arrested shall be informed as soon as maj be. of the grounds o1 arrests This
constitutional requirement is not available 'hen the arrest is made under a judic ial
warrant or when the arrest is not for commission of any offence but for some other
purpose. e.g. for sending the person taken into custody to the officer-in-charge of the
nearest camp under S. 4 of the Abducted Persons (Recovery and Restoration) Act,
1949 or for recovery of income-tax or arrears of land revenue. But the Constitutional
protection of being informed, as soon as may be. is available when the police makes an
arrest on reasonable suspicion that the person arrested is concerned in a cognizable
offence and v iolation of this requirement will, make the arrest inval id. The person arrested
must be informed of the ground of his arrest. Jf the ground disclosed to the person arrested
for his arrest is unsustainable in law. his suit for damages for false imprisonment cannot be
defeated by ‘pleading another ground of arrest which may have existed but which was not
disclosed to him at the time of his arrest. Where after arrest the po)ice reach the
conclusion that prima facie proof of the arrested person's guilt is unlikely to be discovered
by further inquiries of hint or of other potential witnesses, it is their duty to release
him from custody.

If investigation is not completed within 24 hours but there are grounds for believing thai
the information or accusation is well founded, the person arrested must be produced
before a iViagistrate.6 Detention beyond 24 hours can only be under orders of a
Magistrate before whom ihe arrested person is produced. Non-production of the
person arrested before a Magi5trate within twenty-four hours as required by Article
22(1) ot’ the Constitution wil) make the arrest invalid. Murray v Ministry of Defence
[(1988) 2 All ER 521]

The plaintiff was suspected of having committed offences involving the collection of
money in Northern Ireland for the IRA, a prohibited organization. Acting on orders, D and
five other soldiers, who were armed, went to the plaintiffs house at 7 am one morning
to arrest the plaintiff. When the door was opened by the plaintiff the soldiers, in
accordance with their usual procedure, entered the house and D asked the p)aintiff who
she was and ascertained her identity. The soldiers then assembled all the other
occupants of the house in one room and searched the house. During that time D
remained with the plaintiff. At 7.30 am D formally arrested the plaintiff and when asked
by the plaintiff D stated that the arrest was being made ur:0°r s 14 of :i:• Tier:i:em Ir°!ar:ci
(Em°rgenc;' .°rcY'isior:s, As: I 97'"e, •F.trim: proY i ed for members of the armed forces
on duty to arrest without a warrant and detain for up to four hours a person suspected
of committing an offence. The plaintiff was then taken to an army screening centre where
she was interviewed hut refused to answer any questions. She was released at 9.45 AM.
The plaintiff brought an action against the Ministry of Defence claiming damages for false
imprisonment. contending (i) that she had been unlawfully detained between 7 AM
and 7.30 AM because until she was told she was being arrested she was not under
arrest and (ii) that the failure of the soldiers to tell her that she was being arrested until
they were about to Jeave rendered the arrest unlawful. The trial judge dismissed her claim
and his decision was affirmed on appeal by the Court of Appeal in Northern Ireland. 3“he
plaintiff appealed to the House of Lords.

LORD GRIFFITHS.

102
120
ot arrest are spoken on entering or leaving the hot!se, u hen the praci ical ci list o1
the di f1âi'ence on the plaintifl is nonex istent.

In the light of these authorities I can entertain no doubt that the plaintiff was under
arrest from the moment that Cpl Davies identified her on entering the bousc at 7 rim.

The question remains, ho\vever, w'hether 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 ›' Lecicliinsks›'6 thai a
person must be informed of the reason for his arrest at or 'ithin a reasonable lime of the
arrest. There can he no doubt that in ordinary circumstances, the police should tell a 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 fa it 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 s 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 s 14(2) that it is sufficient if he states that he is
effecting the arrest as a member of Her Majesty's forces. Cp) Davies was carrying out
this arrest in accordance with the procedures in which she had been instructed to
make a house arrest pursuant to s 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 IRA, it would be to close one's eyes 10 the obvious nut to appreciate
the risk that the arrest may be forcibly resisted.

It was in my opinion entirely reasonable to delay speaking the words of arrest until the
party was about to leave the house. lf 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 he 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 neighborhood.

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 plaintiffs arrest unlawful. I therefore agree with the conclusion of the Court
of Appeal that the plainti ff was not unlawfully imprisoned between 7 and 7.30 am albeit
my reasons for doing so are different from those of the Court of Appeal.

Although on the facts of this case 1 am sure that the plaintiff as aware of the restraint on
her liberty from 7.110 am, 1 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 Coun of Appeal relied on Herring v knife’' for this
proposition which they preferred to the few of Atkin LJ to the opposite effect in
Meering » Grahame- JThile Avialion

[1947] 1 AII ER 567,

“ (1834) 1 Cr M & R 377,
104

122
 I.’‹› Ih/"’. Merriiig i’ Boyle is an extraordinar)° decision c1 th• Court of Exchequel . a n iother
went to fetch her 10-yeai‘-old son morn school on 24 December 1 833 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 terms fees. and he kept the boy failed. In giving judgment Bollard
B said
(149 ER 11 26 at 1 127);

as far as ›ve know, the boy ittay licn!e been w illing to stciy,‘ he cloes not appear to h‹n!e
been cogDizarif of amp’ restraint, and there ivas no, evidence of any act ivhatsoe ver
done by the defendant in his presence, I think thcil ive connof construe the refusal to fhe
mother in the boys absence. and iv ithout his being cogni-anl of any restraint, fo be an
iiitprisonment of hiiti against his will... ”

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 ah 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 ofFlces. He was taken to
a waiting
1 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 LJ said :

*It .appears to me that a person could be imprisoned without his knowing it. I think a
person can be imprisoned white he is asleep, white he is in a state of drunkenness,
white he is
unconscious, and white 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
white he was in that state. Of course, the damages might be diminished and would be

affected
imprisoned by having the key of a door turned against him so that he is imprisoned in a
room in fact although 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\he same time his captors outside that room may be
boasting to persons that he is imprisoned, and ii seems to me that if we were to take
this case as an instance supposing it could be proved that Prudence had said white the
plaintiff was waiting: "I have got him detained there waiting for the detective to come in
and take him to prison"—
105
 it appears to me that that would be evidence of imprisonment. It is 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

*’ (1919J 121 LT 44

12
4
 question 0t fact. It is true that in all cases of in prisonment so far as the la x uf civil liheit}’ is
concerned that "stone walls do trot a gi isdn make." in the scnse that they’ are nci thc unit
form of imprisonment. but an}’ restraint ’ithin defined bounds x lJiclJ is a restraint in fact may'
be an imprisonment."’‘*

I agree with this passage. In the first place it is not difficult to envisage cases in which harm
may result from lawful imprisonment even though the victim is unaware of it. Dean William
L Prosser gave Evo examples in 'False lmprisoninent: Consciousness of Confinement' (1
955) 35 Col LR 847. in which be attacked §42 of the American La Institute's Restatement
of the Law 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 849):

“Let us consider several illustrations. A tocks B, a child two days old, in the vault of a bank
B is of course, unconscious of the confinement, but the bank vault cannoi 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
caJl for no redress in tort at all ?”

The Restatement of the Law of Torts has now been changed and requires that the person
confined 'is conscious of the confinement or is harmed by it.’20

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 Law Institute's Restatement of the Law
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 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.

2.3 JUSTIFICATION OF TRESPASS TO PERSON

In an action of trespass to the person, once the trespass is admitted or proved it is for the
defendant to justify the trespass if he can, to show he acted with lawful excuse. So if the
plaintiff proves that he was imprisoned by the defendant the onus 1 res upon the defendant of
proving a justification. A trespass to the person may Be justified on the ground (a) that the
defendant was acting in defence ot his person or properly; (b) thai

i
’ (122 LT44 at 53-54) 107
2
° see Restatement of the Law, Second, Torts 2d (1965) §3 5>P 32
106
he w'as stopping a breach of the peace, or us in3 reasonabie force in the prevention ot. crim•,
or .in effecting or assisting in the lawful arrest of offenders or suspected offenders or persons
unlai› fu[ly at large”: (c) that the defendant was acting in aid of officers of the law; (d) that the
plaintif“f was in such as slate as to be dangerous to himself and others.

The following eight defences are available: ( 1) consent: (2) contributory negligence; (3)
self- defence; (4) that the defendant was acting to prevent a trespass or ejecting a trespasser;
(5) that the defendant was acting in support of the criminal law to secure the public peace;
(6) that the defendant was exercising parental or other authority: (7) inevitable accident; (8)
statutory authority

Contributory negligence -

Contributory negligence is generally assumed to be a defence fo assault and banery or false

imprisonment, but there is authority the other way-

Self-defence

It is lawful for any person to use a reasonable degree of force for the protection of himself or
any other person against any unlawful use of frock. In the older bonks n distinction is drawn
between the defence of oneself and of certain persons with whom one is closely connected
(such as a wife, child, or master), and the defence of a mere stranger. It may be safely
assumed, however, that at the present day-all such distinctions are obsolete and that everyone
has the right of defending any person by reasonable force against unlawful force,1 even if he
has made a genuine mistake about the peritous position of that other2 Still, the relationship of
the parties may be relevant to the reasonableness of force used.

Force is not reasonable if it is either (i) unnecessary—i.e. greater than is requisite for the
purpose;—or (ii) disproportionate to the evit to ”be prevented. In order that it may he draped
reasonable within the meaning of this rule, it is not enough that the force was not more than
was necessary for the purpose in hand. For even though not more than" necessary it may be
unreasonably disproportionate to the nature of the evit sought to be avoided.

Prevention of trespass or ejection of a trespasser

It is lawful for any occupier of land, or for any other person with the authority of the
occupier, to use a reasonable degree of force in order to prevent n trespasser from entering or
to control his movements or to eject him after entry. So reasonable force may be used to
control or eject a trespasser taking part in a demonstration on private premises.” This right of
using force against trespassers is conferred only on the occupier of the land (or his agents),
for it is only the occupier who is entitled to complain of a trespass and to take legal
proceedings in respect thereof.

Previous request necessary

A trespasser cannot be forcibly repelled or ejected until he has been requested to leave the
premises and a reasonable opportunity of doing so peaceably has been afforded to him.”' But
as against him who enters or seeks to enter by force, ”I need not request him to be gone, but
may lay hands on him immediately, for it is but returning violence with violence. So if one

12
4
comes forcibly and tames at 'ay my •qoods. I may oppose him without any more ado, for therc
is no .time to make a request. \s to the amount of force that iiiay be rtsed, it must amount to
nothinp« more than forcible remova) and m ust not incl ude beating, wounding. or other
physical inj tlry.

Defendant acting in support of the law

Sometimes an assault or imprisonment may be justified on the ground that the defendant was
acting in support of the law. But the courts are anxious to see that the liberty, of the subject
is not invaded except under due process of law and the onus of proving a legal justification
lies on the defendant. The plea of public interest or act or“ state is not enough. So one who
relies upon a statutory power of entry for public health of mental health purposes must prove
that all the statutory conditlOns precedent to entry have been complied » ith, or else an
assault upon him may be justifiable.

Parental and other authority

A parent is not guiity of an assault if he physically interferes with his child by wav of
reasonable restraint or chastisement, or for therapeutic reasons—e.g. to lake a blood test. lf
the child is sent away to school, the schoolmaster is entitled to admlnister reasoRable
chastisement to the child, or to expel him for reasonable cause. According to the older
authorities, the schoolmaster's power arose from a delegation to him of the parental
authority; but the modern view is that the schoolmaster has his own independent authority to
act for the welfare of the child. Hence an education authority which has removed a child
from its parents' care for the purposes of instruction is entitled to punish it. The
schoolmaster's authority is not confined to the four walls of the school: it has been held that a
schoolmaster was justified in punishing a boy under 16 who had, contrary to the rules, been
smoking in the street during term after having returned home.

Inevitable accident

Inevitable accident provides a good excuse for n prima facie trespass which is otherwise
actionable. An inevitable accident has been defined as an event over which the defendant had
i in cwin*m i, ‹urea cue v• to or vv"ii i i i resin inc us Y's ov•oi i ‹i$’wiuou wJ’ ti in ever o inc or
cue greatest care and skill. This may be said to be the generally accepted view since
Stanley v. Powell” In that case the defendant whilst firing at a pheasant accidentally
and without negligence shot the plaintiff, who was employed to carry cartridges for a
shooting party/with
a pellet which ricocheted from a tree at a considerable angle. Sicinle y v. Po›i!ell night have
been decided on the ground that the plaintiff had voluntarily accepted the risk by joining
the party, but Denman J. based his dec ision on the ground that even if the action was in
trespass, not case, the injury being accidental the defendant could not be liable.

Apart from statutory powers of arrest, Parliament has authorized medical examinations or
tests which would otheovise constitute a Serious battery e.g. breath tests under the Road

** [1891] 1 CAB 86
108

126
 Traffic Act. 1988. section ñ. or b!ood tests under sections 2U to 23 cf* the la:n ilj Law Reform
Act. ] 969.

2.4 ABUSE OF LEGAL POROCESS

Wrongfully setting the law in motion. lt is obviously a grievance that an individual should
be harassed by legal proceedings improperly instituted against him. If there is no foundation
for
them no doubt they will not ultimately succeed, but during their progress they may cause
great injury. ii is the right of everyone to put the law in motion if he does so with the honest
intention of protecting his own or the public interest. or if the circumstances arc such, be his
motives what they may as to render it probable prima facie that the law is on his side. But it is
an abuse of that right to proceed maliciously and without reasonable and probable cause for
anticipating success, and thereby to cause damage to another. The too of malicious
prosecution is dominated by the problem of balancing two countervailing interests of high
social importance safeguarding the individual from being harassed by unjustifiable litigation
and encouraging citizens to aid in law enforcement.

Nature of damage thereby caused

An abuse of the right to put the law info motion may of necessity be injurious, as involving
damage to character, or it may in any particular case bring about damage to person or
properly. There are according to Holt C.J., three sorts of damage to a plaintiff, any one of
w.hich is sufficient to support an action of malicious prosecution. "First, damage to his fame if
tile matter whereof he be accused be scandalous. Secondly, to his person, whereby he is
imprisoned. Thirdly, to his property, whereby he is put to charges and expenses. To these
rijay be added the damage which someone suffers when his house is entered and his property
seized. Whenever a plaintiff can show that he has suffered under any of these heads of
damage by reason of the defendant having wrongfully put the law in motion against him,
whether civilly or criminally, he has a remedy.

What is Malicious Prosecution?

Malicious prosecution is malicious institution against another of unsuccessful criminal, or

bankruptcy, or liquidation proceedings, without reasonable or probable cause. This tort
balances two competing principles, namely the freedom that every person should have in
bringing criminals to justice and the need for restraining false accusations against innocent
persons. The foundation of the action lies in abuse of the process of the Coun by wrongfully
setting the law in motion and it is designed to discourage the perversion of the machinery of
justice for an improper purpose.

In order that an action shall lie for malicious prosecution or the other forms of abuse of
process which have been referred to, the following-condilions must be fulfilled:

(l) The proceedings must have been instituted or continued by the defendant;
(2) He must have acted without reasonable and probable cause;
(3) He must have acted maliciously;
(4) The proceedings must have been unsuccessful—that is to say, must have terminated
in favour of the plaintiff now suing.
127
We shall d.•al vith these i qriircnscnts in their order

(1) Institution of Proceedings

Th• proceedings complained of by the plaintiff must have been instituted by the defendant
— that is to say, he must be the person w ho put the la in motion against the plaintiff. It is
not necessary, however, thai lie should be a party to the proceedings. Thus an
action for mallcious abuse of process will lie against the solicitor who in his client's name.
has set the law ln motion against the plaintiff.

What is a prosecution?

In establishing the first essential element of the tort of malicious prosecution two key
issues must be addressed, what constitutes a prosecution? And who is the prosecutor? To
prosecute is to set the law in motion, and the law is only set in motion by an appeal to
some person clothed with judicial authority in regard to the matter in question, and to
be liable for malicious prosecution a person must be actively instrumental in so selling the
law in motion. So forensic scientists who prepared reports for the police arit the D.P.P. as a
result of which the plaintiff was prosecuted for murder could not be liable for malicious
prosecution for in no way did they initiate those proceedings. They merely provided
information requested by those seeking to decide whether to set the law in motion. If
a charge is made to the police constable and he thereupon makes an arrest, the party
making the charge, if liable at all, will be liable in an action for false imprisonment, on the
ground that he has directed the arrest and therefore it is his own act and not the act of
the law. But if he goes before a magistrate who thereupon issues his warrant, lhen his
liability, if any, is for mat icious prosecution.

The person liable is the prosecutor to whose instigation the proceedings are due.
Instigating a prosecution is to be distinguished from the act of merely giving information,
on the strength of which a prosecution is commenced by someone else in the exercise of
his own discretion. When the defendant himself is the person on whose complaint the
Court takes cognizance against the plaintiff, there is no difficulty in holding that the
defendant is the prosecutor. ln
i c co o vj oo cciv i i w i cix v s'i in*i i in i viii mv• z wi rim i t in ci i c pH When ucWl NlllWl I 1l‹ D tm VG

answered having regard to all the circumstances of the case. The principles bearing on this
question were laid down by the Privy Council as follows : "it is not a principle of
universal application that if the police or i'vlagistrate act on information given by a
private individual without a formal complaint or application for process, the Crown and
not the individual becomes the prosecutor. If a complainant does not go beyond” giving
what lie believes to be correct information to the police, and the police, without further
interference on his part (except giving such honest assistance as they may require), think
fit to prosecute, it would be improper to make him responsible in damages for the
failure of the prosecution, but if the charge is false to the knowledge of the
complainant, if he misleads the police by bring in e suborned witnesses to support it, if
he influences the police to assist him in sending an innocent man for trial before the
Magistrate. it would be equally improper to allow him to escape liability because the
prosecution has not, technically, been conducted by him. The question in all cases of
this k ind must be: Who Yvas the prosecutor? And the answer must depend upon ali the
circumstanccs of ihc case. The mere setting Of the law in motion is not
110
128
Pirst, an honest belief of the accuser in the gut it oi the .acc tised:
secondly, such , belief must be based on an honest conviction of the existence of
circumstances which )ed the accuser to that conclusion:
thirdly, such secondly mentioned be lief as to existence of the circumstances m ust be
based upon reasonable grounds. that is such grotlnds. as i ould lead an; fairly cautions
man in the defendant's situation to believe so;
fourthly, the circumstances so believed and relied on by the accuser must be such as
amount to a reasonable ground for belief in the guilt of the accuseci.

Reasonable and probable cause means that there are sufficient grounds for thinking that
the accused was probably guilty but not that the prosecutor necessarily believes in the
probability of conviction; he is only concerned with the question whether there is a
case fit to be tried. Objectively there must be reasonable and probable cause for the
prosecution, and the prosecutor must not disbelieve in his case, even though he
relies oil” legal advice. If the defendant can be shown to have initiated the prosecution
without himself holding an honest belief in the truth of the charge, he cannot be said to
have acted upon reasonable and probable cause. Further, mere belief in the truth of the
charge is not sufficient if the circumstances before the defendant would not have led
”an ordinary prudent and cautious man" to conclude that the person charged was
probably guilty of the offence.

The plaintiff must give some evidence of the want of reasonable and probable cause
before the defendants can be called upon to show the existence: of such cause. \Vhen the
plaintiff has given such evidence as, if not answered, would entitle him to succeed,
the burden of leading evidence shifts to the defendant to establish the contrary. The
burden of proof in the sense of proving the case that there was want of reasonable and
probable cause is on the plaintiff and it is not for the defendant to establish that there
was reasonable and probable cause.

I ack of reasonable and probable cause is to be understood objectively: it does not connote
the subjective attitude of the accuser. The fact-that accuse himself thinks that it is
reasonable to prosecute does not per se lead to the conclusion that judicially speaking he
had reasonable and probable cause for the prosecution.

The opinion of counsel, as to the proprie of instituting a prosecution, will not excuse
the defendant if the charge was a malicious one. But if a party lays all the facts of his case
fairly before counsel; and acts bona fide upon the opinion given by that counsel
(however erroneous that opinion may be) he is not liable.

The fact that the plaintiff has been acquitted is not prima facie evidrno• 'h•' 'b.' situ bc
was unreasonable and faise. i lie question or“ reasonable and probable cause has to be
determined upon facts known to the prosecutor at the time of the launching of the
prosecution and. therefore, the fact that the prosccution cnded in the acquittal of an
accused can never come into the determination of the question of reasonable and
probable cause. But the fact that he has been convlcted by a competent Coun, although he
may subsequently have been acquitted on appeal, is evidence against the plaintiffs
necessary plea of want of reasonable and probable cause.

112

13 0
 As regards an inv.•stigat in•_ officer i ho files c harge sheet. 1 easonable and probab ie
cause mcans whether the in vest igalion showed existence of facts from h ich it cool ld
be said that
there was a case proper to be laid belore thc Court.”

(3) Malice

No action wil! lie for the institution of legal proceedings, however destitute of.
reasonable and probable cause, uniess they are instituted maliciously—that is to
say. from some wrongful motive. Malice and absence of reasonable and probable cause
must unite in order to produce liability. So tong as legal process is. honestly used for its
proper purpose. mere negligence or want of sound judgment in the use of it creates no
liability; and, conversely, if there are reasonable grounds for the proceedings (for
example, the probable guitt of an accused person) no impropriety of motive on the
part of the person instituting these
proceedings is in itself .any ground of liability. Therefore it is necessary to distinguish
between honesty of belief and honesty of motive; the former is relevant to the
question of reasonable and probable cause, the laner to the question of malice.

"Malice" means the presence of some improper and wrongful motive —that is to say,
an intent to use the legal process in question for some other than it's legally appointed
and appropriate purpose.”" It can be proved either by showing what the motive was
and that it was wrong, or by showing that the circumstances were such that the
prosecution can only be accounted for by imputing some wrong or indirect motive to the
prosecutor": for example, prosecuting a person for theft in order to deter others from
committing similar depredations,

Nevertheless, a jury is not at liberty in all cases to infer malice from want of reasonable
cause. Want of reasonable cause is sufficient evidence of malice in those cases only in
which it is sufficient evidence that there was no genuine belief in the accusation made. If it
appears that there was such a belief, the plaintiff must produce some independent
evidence of malice,
) acrid cannot rely on the absence of reasonable cause.

) (4) Termination of the Proceedings in Favour of the Plaintiff

No action for malicious, prosecution will lie until or unless the prosecution or other
proceeding has terminated in favour of the person complaining of it. No person, for
example, who has been convicted on a criminal charge con sue the prosecutor
for malicious
prosecution even though we can prove that he is an innocent man and that the accusation
was a malicious and unfounded one. Even if the prosecution or other proceeding is still
pending,
) the same rule applies. ”It is a rule of law that no one shall be allowed to allege of
a still depending suit that it is unjust. But if the prosecution has actually determined in any
manner in favour of the plaintiff it matters nothing in what way this has taken place. There
need not have been any acquittal on the merits. What the plaintiff requires for his
action is not a judicial determination of his innocence but merely the absence, of any
judicial determination of his guilt. Thus it is enough if the prosecution has been
discontinued, or if the accused has been acquired by reason of some formal defect in the
indictmen"t or if a conviction has been quashed, even if for some technical defect in the
proceedings. Conversely, if the proceedings have actually determined against the plaintiff
it is immaterial that the judgment cannot be attacked by way of appeal.

113
We have seen above that the plainer f1 musl prove thai he was p roseculed by the
defendant. i f this prosecution is ould have resulted in plaintiff’s ct›ni’iction. no suit
woitld lie against the defendant. But w'here the prosecution ended in favour of the
plaintiff. he has a cause of action against the defendant for such prosecution. Accordingl
y. the plaintiff must show that the prosecution ended in his favour. The prosecution
ends in plainer If's favour when he sho»’s that (a) he as ac quined by the court either
on merit" or on technical grounds", or (b) his conviction was quashed or set aside by
the appellate court6. or (c) his prosecution was discontinued or withdraw n by the
defendant.

FALSE IMPRISONMENT AND ABUSE OF PROCESS

No action for false imprisonment will lie against a person vho has procured the
imprisonment of another by obtaining against him a judgment or other judicial order
of a court of justice, even though thal judgment or order is erroneous, irregtilar, or
without jurisdiction. The proper remedy in such a case is ah action for malicious
prosecution or other malicious abuse of legal process. In an action of that description .that
plaintiff can succeed only if he proves both malice and the absence of any reasonable and
probable cause for the proceedings complained of; whereas in an action for false
imprisonment, just as in all other cases of trespass, to person or property liability is
created, in general, even by honest and inevitable mistake. The rule, therefore, that no
actions for false imprisonment will lie against a litigant in respect ofjudicial imprisonment
procured by him is a valuable protection against liability for error in the course of legal
proceedings. Accordingly, if the plaintiff has been wrongly arrested without warrant and
taken, before magistrale. who remands him in custody, he must sue in respect of his
imprisonment before the remand in an action for false imprisonment, but in respect of
that which is subseqiient lo the remand in an action for malicious prosecution.

Distinction between false imprisonment and malicious prosecution

(1)ln malicious prosecution imprisonment is procured by a judgment or other judicial order
by a court of justice. If an unlawful arrest or detention of the plaintiff has been .made
by a private individual or procured through a merely ministerial officer of law rather
than a judicial officer of a court ofjustice, the wrong is false imprisonment. The distinction
has been thus stated by Wills J. “The distinction between false imprisonment and
malicious prosecution is well illustrated by the case where, parties being before a
magistrate, one makes a charge against another, whereupon me magistrate orders the
person charges to be taken into custody and detained until the matter can be investigated.
The party making the charge is not liable to an action for false imprisonment because
he does not set a ministerial officer in motion but a judicial officer.

(2)Another distinction between the hvo is ”Imprisonment is prima facie a tort, prosecution
is not so in itself. Therefore, in an action for false imprisonment, it is the defendant who
has to justify the imprisonment." Whereas in an action for malicious prosecution the
plaintiff has to allege arid prove affirmatively the non-existence of reasonable and probable
cause.

2
*Berry 'v. B.T C., (2962) 1 QB 305.
4
* Wicks v Fentham, (1791) 4 TR 247; Jones v. Fwynn, (1712) 10 Mod 214
114

132
 j3) M oreover, in an act!on for mal ic ions prosec union the pla ilitifl‘ has to prove rnal ice on
the part of defendant. In false imprisonment that requii‘ement 's not there arid it is. therefore.
no
def'e1ice to say that the detention' by the defendant was withorlt mat ice and due to a bonci Jilly
mistake.

IHalicious, Civil proceedings

Unlike malicious criminal prosecution, no action can be brought, as a general rule. in the
case of civil proceedings even though the same are malicious and have been brought without
any reasonable and probable cause.90 Since an unsuccessful plaintiff in any civil
proceedings has generally to bear the cosl of litigation, that is considered to be sufficient
deterrent, factor
which may discourage false civil proceedings. In exceptional casés, however. where the cost
of litigation may not adequately compensate the defendant, he can sue to recover damages
for the toss arising out of such civil proceedings. The examples of such proceedings
are
insolvency proceedings against a businessman,” or winding up proceeding against a trading
company," or the proceedings which result in arrest or execution against the defendant's
property," or attachment of his property. The essentials required to be proved in such an
action were stated as under in Genu Ganapati v. Bhalchnnd Jivraj”

"In order to succeed in establishing malicious abuse of civil proceedings, the plaintiff is
required to prove a number of ingredients. ( 1) In the first place, malice must be proved. (2)
Secondly, the plaintiff must allege and prove that the defendant acted without reasonable and
probable cause and the: entire proceedings against him have either terminated in his favour
or the process complained of has been superseded or discharged. (3) The plaintiff must also
prove that such civil proceedings have interfered with his liberty or property or that such
proceedings have affected or are likely to affect his reputation. For example, if the civil
proceedings have resulted in the arrest of the- plaintiff or if they are in the nature of
bankruptcy, proceedings or winding-up proceedings, they may adversely affect the plaintiff's
reputation. The plaintiff must establish that he has suffered damage.”

In the above stated case, A filed a suit against B alleging that B had maliciously sued A with
the improper motive of preventing him from carrying out his contract with another person,
G. No malice on the part of B could be proved by A. It was, on the other hand„ found that B

had
stage that A was also joined as a defendant along with C because that was necessary to
determine the contractual right of B. B was held nor liable for instituting malicious civil
proceedings against A.

Dallison v. Caffery |(1964) 2 All ER 610]

The court described the common law duty on a prosecutor to disclose material. Lord
Denning MR said: “The duty of a prosecuting counsel or solicitor, as I have always
understood it, is this: if he knows of a credible witness who can speak to material facts which
tend to show the prisoner to be innocent, he must either call that witness himself or make his
statement available to the defence. It would be highly reprehensible to conceal from the court
the evidence which such a witness can give. lf the prosecuting counsel or solicitor knows,
not of

** AIR 1981 Bonn 170

lls
134
a credible i itness. but a w itness whom he docs n‹ t accept as c redible. he should tell
the defence about hire so that they can call him if the;» ish. Here the solicitor.
immediately alter the court proceedings [for committal before the nsapistrates], p•ave
the solicitor for the det"ence the statement of Mr. and Mrs. Stamp. and thereby he did his
duty.”

Dipkock LJ said thai it is for the trial judge objectively to determine whether the
suspicion held by a pol ice ofticer and used to justify an arrest spas reasonable and that
whether there are such grounds or not is a question of laws: ” Nie test whether there was
reasonable and probable cause for the arrest or prosecution is an objective one, namely,
whether a reasonable man, assumed to know the law and possessed or’ the information
which in fact was possessed by the defendant, would believe that there was reasonable
and probable cause."

He described the continuing nature of an arrest: "The trespass by the arrestor continues so
tong as he retains custody of the arrested person, and he must justify the continuance of
his custody by showing that it was reasonable. What is reasonable conduct on the part of a
police officer in this respect may not be the same as what would be reasonable conduct on
the part of a private arrestor."

Kamta Prasad Gupta v. The National Buildings Construction Corporation Ltd. and
Others, AIR1992Delhi275

Plaintiff has filed this suit in forma pauperis seeking damages to the tune of Rs. 4,72,400/ -
for malicious prosecution. Facts of the case, in brief, are that the plaintiff had taken
employment with the National Buildings Construction Corporation Limited defendant
No. I vide appointment letter dated November 17, 1961, as Officer-in Charge Testing
Laboratory in the grade of Rs.350-900 plus usual allowances. Defendants 2 to 4 were also
in the employment of defendant No. I in different capacities, i.e. defendant No. 2 was
the V igilance Officer white other two defendants were Resident Engineer and Junior
Engineer in the said Corporation. It is pleaded by the plaintiff that he was Officer-in-
Charge of the Testing Laboratory of defendant No. I in between the period December 23,
1961 to August 23, 1966 at the New Delhi Office of defendant No. I and during the
course of his employment he had direct dealings with defendants 2 and 3 who had
developed hatred against the plaintiff, because plaintiff was very particular in giving
correct testing reports of soil concrete and building materials whereas defendants 2
and 3 had wanted from him undue advantage for obtaining different repons and they
were defending the criminal case and Rupees 3,62,400/- as the toss of the salary which he
would have received till the age of super-annuation.

Following issues were framed:

1. Whether the plaintiffs services stood terminated on account of his absence from
the office?
2. Whether the plaintiffs absence from office from 23rd August, 1966, to 9th September,
1966, was authorized?
3. Whether prosecution of the plaintiff on the complaint of defendant No. 2
was, malicious?
4. Whether the plaintiff is entitled to any damages? If so, to what amount?

Issue No. 3
116
134
 rcgister and the goods i inc i rided in the inventor it iv as found that certain articles i
ere m issing. The plaintiff has. i ide his application 1..A. 6577 produced on record photo
copies or the inventory prepared the list ot‘ the articles which was allegedly found missing
which ii ere proved in the criminal case and it u as ap•reed at the stage of arguments that
these documents may be read in evidence without plaintiff being called upon to pro›'e
them. The original documents, which were produced durinp• the trial are no longer
available as the file containing those documents stands weed ed out. Document which is
as exhibited as PV' 2/ C in the criminal case. photo copj o1 hich is produced by the
plaintiff. sho› 's that one 10 "Ftoiv Table of the value of Rs. 338/- found missing. plaintiff
has stated that this particular table was found in a cement bag and the cement bag
stood listed at item to. 69 of the inventory list, Then he has also mentioned that
Density Basket, which was allegedly found missing, »'as in fact given a nomenclature of
wiremen bucket in the inventory and one item Kelly Ball Penetration Apparatus wh ich
was allegedly found missing was also there in the inventory but under a di fl'erent name.
In his statement he has riot given any Explanation in respect of other items tound
missing. The learned counsel for the plaintiff, however, contended that prosecution of
the plaintiff ought not to have been launched before giving hiln an opportunity of checking
up the articles mentioned in the inventory and giving some Explanation for allegedly
missing articles. I do not think that on this score it can be said that there wa5 no reasonable
and probable cause for the defendants to have launched the criminal case against the
plaintiff. After all white preparing the inventory and checking up the same with the
stock register, thc officcrs of defendant No. I appeared to have found that certain
articles were missing. Any person preparing the inventory in such circumstances could
come to the conclusion that certain valuable equipment is missing and thus, it is a fit
case for
)aunching the prosecution. It cannot be said that prosecution was launched against
the plaintiff without any reasonable or probable cause. I have gone through the list Ex.
PW/ 2C and find that there are many articles which were found missing in respect of
which no Explanation has been furnished by the plaintiff. Some of the articles are
article size Distribution Apparatus of the value of Rs. 338. Compression Testing Machine of
the value of Rs. 130/ -, Mouth Pieces of the value of Rs. 124/ 80, Beem Mould Testing
Apparatus of the value of Rs. 884/-, 18” x 1 2", 7/8" thick electric plate of the value of Rs.
252/-, sample of the value of Rs. 399/- and some other items of less value. Even in the
judgment of the iVIagistrate there is no discussion or reference to these missing items. Even
in this Court the plaintiff has not shown as to what happened to these missing items. So,
it cannot be said 'that the defendants had prosecuted the plaintiff without reasonable
or probable cause. As far as. malice part is concerned, in evidence the plaintiff has
made reference to the hatred being nourished by defendant to. 3 against the plaintiff 4
He has not imputed any malice to other defendants. There is only bald statement of the
plaintiff that he had been approached by defendant No. 3 for giving a fax orable report
which is not supported by any other witness Even pJaintiff has not referred to any
instance showing that the plaintiff was being harassed by defendant No I or defendant No I
in any manner. So, it is not proved that in fact, defendant No.3 or defendant No.2 z ere
actuated by any malice against the plaintiff and they had launched this criminal case
against the plaintiff actuated by any malice. So , l hold that plaintiff has failed to prove
that he v'as maliciously prosecuted. This issue is decided against the plaintiff. 10.

Issue No. 4

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 In viei4 of the dec is ion in issue o. 3. plairdit"f is not entitled to recover any damages.
Howex'er. if issue to. 3 had been held in fav or of the plaintiff. he would have bcen entitled
to some damages for toss of some reputation on account or’ having been prosecuted for
offence punishable under Section 409 of the Indian Penal Code and for some damages for the
expenditure incurred by him in defending the criminal case. Issue is, however, decided
against the plaintiff.

11. Issue i’4o. 5

Suit is w ithin time because it has been brought within one year of the plaintiff being acquitted
of the criminal charge. Issue is decided in favor of the plaintiff.

12. Issue I"Io. 6

In view of the decision in issue No. 3, suit is I iable to be dismissed.

13. I dismiss the suit but leave the parties to bear their own costs.

14. Petition dismissed.

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