BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Murray v Ministry of Defence (Northern Ireland) [1988] UKHL 13 (25 May 1988)
URL: http://www.bailii.org/uk/cases/UKHL/1988/13.html
Cite as: [1988] 2 All ER 521, [1988] UKHL 13, [1988] 1 WLR 692, [1988] WLR 692

[New search] [Printable version] [Buy ICLR report: [1988] 1 WLR 692] [Help]


JISCBAILII_CASE_CONSTITUTIONAL

    Parliamentary Archives,
    HL/PO/JU/18/248


    Murray (A.P.) (Appellant)

    v.

    Ministry of Defence (Respondents)
    (Northern Ireland)

    JUDGMENT

    Die Mercurii 25° Maii 1988

    Upon Report from the Appellate Committee to whom was
    referred the Cause Murray (A.P.) against Ministry of Defence,
    That the Committee had heard Counsel on Wednesday the 20th and
    Thursday the 21st days of April last, upon the Petition and
    Appeal of Margaret Murray, of 50 Stewartstown Park, Belfast,
    praying that the matter of the Order set forth in the Schedule
    thereto, namely an Order of Her Majesty's Court of Appeal in
    Northern Ireland of the 20th day of February 1987, might be
    reviewed before Her Majesty the Queen in Her Court of
    Parliament and that the said Order might be reversed, varied
    or altered or that the Petitioner might have such other relief
    in the premises as to Her Majesty the Queen in Her Court of
    Parliament might seem meet; as upon the Case of the Ministry
    of Defence lodged in answer to the said Appeal; and due
    consideration had this day of what was offered on either side
    in this Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and
    Temporal in the Court of Parliament of Her Majesty the Queen
    assembled, That the said Order of Her Majesty's Court of
    Appeal in Northern Ireland of the 20th day of February 1987,
    complained of in the said Appeal be, and the same is hereby,
    Affirmed and that the said Petition and Appeal be, and the
    same is hereby, dismissed this House: And it is further
    Ordered, That the costs, incurred by the said Appellant in
    respect of the said Appeal to this House be taxed in
    accordance with Schedule 2 to the Legal Aid, Advice and
    Assistance (Northern Ireland) Order 1981.

    Cler: Asst. Parliamentor:

    Judgment: 25.5.88

    HOUSE OF LORDS

    MURRAY (A.P.)
    (APPELLANT)

    v.

    MINISTRY OF DEFENCE
    (RESPONDENTS) (NORTHERN IRELAND)


    Lord Keith of Kinkel
    Lord Templeman
    Lord Griffiths
    Lord Oliver of Aylmerton
    Lord Jauncey of Tullychettle


    LORD KEITH OF KINKEL

    My Lords,

    I have had the opportunity of considering in draft the
    speech to be delivered by my noble and learned friend Lord
    Griffiths, I agree with it, and for the reasons he gives would
    dismiss the appeal.

    LORD TEMPLEMAN

    My Lords,

    I have had the advantage of reading in draft the speech
    prepared by my noble and learned friend Lord Griffiths and, for
    the reasons he gives, I too would dismiss the appeal.

    LORD GRIFFITHS

    My Lords,

    The plaintiff, Mrs. Margaret Murray, a resident of
    Andersonstown, Belfast, sued the Ministry of Defence for false
    imprisonment by the army. Her claim was dismissed by Murray J.
    and the Court of Appeal in Northern Ireland, and she now appeals
    to your Lordships' House by leave of the Court of Appeal. She
    also appealed to the Court of Appeal from the refusal of Murray
    J. to award her damages for trespass to the person arising out of
    a "pat search" of her clothing whilst she was in custody. The
    Court of Appeal allowed her appeal in this respect and awarded
    her £250 damages. There is no appeal against this finding of the
    Court of Appeal and it would therefore be inappropriate to express
    any view on the correctness or otherwise of that part of the
    judgment of the Court of Appeal and I refer to it only as an
    incident in the history of these proceedings.

    Although I shall have to deal with the facts of the
    plaintiff's arrest and detention in some detail, the appeal raises
    the correctness of the procedures laid down and followed by the
    army in Northern Ireland when they purport to exercise the power
    of arrest, detention and search, contained in section 14 of the
    Northern Ireland (Emergency Provisions) Act 1978, which provides:

    "(1) A member of Her Majesty's forces on duty may
    arrest without warrant, and detain for not more than
    four hours, a person whom he suspects of committing,
    having committed or being about to commit any
    offence. (2) A person effecting an arrest under this
    section complies with any rule of law requiring him
    to state the ground of arrest if he states that he is
    effecting the arrest as a member of Her Majesty's
    forces. (3) For the purpose of arresting a person
    under this section a member of Her Majesty's forces
    may enter and search any premises or other place -
    (a) where that person is, or (b) if that person is
    suspected of being a terrorist or having committed an
    offence involving the use or possession of an
    explosive, explosive substance or firearm, where that
    person is suspected of being."

    I turn now to the facts. On 22 June 1982, two of the
    plaintiff's brothers, Colum and Eamonn Mayne, were convicted of
    arms offences in the United States of America connected with the
    purchase of weapons for the I.R.A., and they received sentences of
    three years' and two years' imprisonment respectively.

    At about 6.30 a.m. on 26 July 1982, Corporal Davies, a
    member of the Women's Royal Army Corps, serving with 181
    Provos Regiment, attended an army briefing at which she was told
    that the plaintiff was suspected of involvement in the collection of
    money for purchase of arms for the I.R.A. in the United States,
    an offence under section 21 of the Act of 1978 and section 10 of
    the Prevention of Terrorism (Temporary Provisions) Act 1976.
    Corporal Davies was instructed to go with a number of armed
    soldiers to the plaintiff's house, 50, Stewartson Park,
    Andersonstown, and to arrest the plaintiff and bring her to the
    army screening centre at Springfield Road.

    Acting on these orders, Corporal Davies, who was unarmed,
    and five armed soldiers, arrived outside the plaintiff's house in a
    Land Rover at 7.00 a.m. The driver stayed with the Land Rover
    in front of the house, one of the soldiers went round to the back
    of the house, and the remaining three soldiers and Corporal Davies
    went to the front door and rang the bell. The door was opened
    by the plaintiff who was only partly dressed. The three armed
    soldiers and Corporal Davies immediately entered the house.
    Corporal Davies asked the plaintiff if she was Mrs. Margaret
    Murray and she replied: "Yes."

    - 2 -

    Corporal Davies asked the plaintiff to get dressed and she
    and the soldiers then followed the procedure in which they had
    been instructed when effecting an arrest in a private house. They
    entered every room in the house and asked all the occupants to
    assemble in one room. Corporal Davies went upstairs and told the
    children, three girls and a boy, to get up and go down to the
    living room, and the plaintiff's husband was also asked to go to
    the living room. Corporal Davies stayed with the plaintiff upstairs
    whilst she was getting dressed. According to the plaintiff, she
    asked at this stage if she was being arrested, and received no
    answer. Corporal Davies was not cross-examined about this, but it
    seems likely that if the plaintiff had asked the question Corporal
    Davies would not have replied, as her instructions were to make
    the arrest just before they left the house.

    At some stage, Corporal Davies remembers the plaintiff
    taking two tablets which she said she needed because she was
    diabetic. One of the soldiers downstairs stood in the hallway near
    the front door, and the other two looked into the other rooms on
    the ground floor and took notes as to their contents including the
    pattern of the wallpaper. There was, however, no evidence and no
    suggestion that they carried out any search of the contents of the
    house.

    After the plaintiff had dressed and come downstairs,
    Corporal Davies called one of the soldiers to be a witness, and
    said to the plaintiff: "As a member of Her Majesty's forces I
    arrest you." The plaintiff, who is not unversed in these matters,
    asked: "Under what section?" Corporal Davies did not reply; the
    plaintiff repeated the question, and Corporal Davies said: "Section
    14." Corporal Davies, the plaintiff and the soldiers then left the
    house and were all driven in the Land Rover to Springfield Road.
    It was not suggested on behalf of the plaintiff that Corporal
    Davies or any of the soldiers behaved in a bullying or aggressive
    manner towards her or any members of her household or that
    there was any undue delay before the plaintiff left the house with
    them after she had dressed.

    After the Land Rover had been parked in the yard at
    Springfield Road, the plaintiff was asked to wait in the back of
    the Land Rover while Corporal Davies reported their arrival. She
    was then asked by Corporal Davies to get out of the Land Rover
    and stand facing the wall of the yard. The plaintiff refused to
    face the wall and she and Corporal Davies stood in the yard for a
    few minutes until Sergeant Brothers came from an army building
    known as the Screening Centre and asked the plaintiff her name,
    address and date of birth. The plaintiff only gave her name. She
    was then escorted into the building and asked to sit for a short
    time in a small cubicle. At 8.05 a.m. she was taken before
    Sergeant Brothers who attempted to obtain answers from her that
    would enable him to complete a form entitled "Screening Pro
    Forma - Part One (To be completed by Reception Controller)."
    This short form records personal details, arrest details, a screening
    procedure record and appearance. The only information required
    from the plaintiff related to her personal details. She refused to
    answer any questions save to give her name and the entire
    interview took only four minutes, ending at 8.09 a.m. when she
    was taken by Corporal Davies to the medical orderly. She was

    - 3 -

    asked by the medical orderly if she suffered from any illness but,
    again, the plaintiff refused to answer any questions.

    At 8.20 a.m. the plaintiff was taken to an interview room
    and questioned by a soldier in civilian clothes in the presence of
    Corporal Davies. The plaintiff maintained a totally uncooperative
    attitude, refusing to answer any of the interviewer's questions. On
    three occasions the interview was interrupted when the plaintiff
    asked to go to the lavatory, to which she was escorted by
    Corporal Davies. The interview ended at 9.35 a.m. The plaintiff
    was taken once more to the medical orderly and asked if she had
    any complaints about her treatment which she refused to answer.
    She declined the offer of transport to return her to her house and
    was escorted to the gates of the centre by Corporal Davies and
    released at 9.45 a.m.

    At the trial before Murray J., the main thrust of her
    complaint was that the whole operation carried out by the army
    was unlawful from beginning to end. It was submitted that the
    plaintiff had been arrested and questioned not because of any
    suspicion that she had been involved in collecting money to buy
    arms for the I.R.A. but as part of an intelligence-gathering
    operation carried out by the army in which innocent persons,
    unsuspected of any offence, were brought in for questioning to
    gather information that might be useful against others suspected of
    I.R.A. activities. This primary attack failed because the judge
    held that he was satisfied that Corporal Davies was an entirely
    honest witness and that after her briefing she did suspect the
    plaintiff of the offences involved in collecting money for the
    I.R.A., and thus had the limited power of arrest and detention
    conferred on members of the armed forces by section 14 of the
    Act of 1978. No appeal is pursued before your Lordships in
    respect of this finding of the judge.

    However, accepting that the army had grounds for arresting
    and detaining the plaintiff, it is submitted that the procedures
    they adopted were unlawful in two respects. Firstly, it is said
    that the plaintiff should have been told that she was under arrest
    as soon as her identity was established when she opened the door
    at 7.00 a.m. and the failure to tell her that she was under arrest
    until just before they left the house at 7.30 a.m. meant that she
    was unlawfully detained and thus unlawfully imprisoned for half an
    hour. Secondly, it is said that she was detained at the centre for
    an unjustifiably long period before she was released and thus
    unlawfully imprisoned during the latter period of her detention at
    the centre.

    The Court of Appeal rejected both these complaints of
    unlawful imprisonment. They gave the following reasons for
    rejecting the complaint of false imprisonment from 7.00 to 7.30
    a.m.:

    "Whether the plaintiff has any complaint in law on account
    of her treatment during the first half-hour before the
    formal words of arrest were spoken may depend upon
    whether in law she was already under arrest, or, if not,
    whether she was being falsely imprisoned. During that
    period the evidence was that had the plaintiff attempted to
    leave the house she would have been stopped. Had she been

    - 4 -

    denied the right to leave, that refusal would have
    constituted an imprisonment in law. But it also appears
    from the terms of her inquiry that she did not appreciate
    that she would not have been free to leave the house. I
    am satisfied that because of this lack of any indication by
    any member of the army that the plaintiff was being
    arrested or any appreciation on her part of what would have
    been the reaction had she attempted to leave, she was not
    during that period under arrest or falsely imprisoned.
    Knowledge of the fact of restraint by the suspect is an
    essential element of an arrest. There was some indication
    to the contrary in Meering v. Grahame-White Aviation Co.
    Ltd.
    (1919) 122 L.T. 44. In that case the Court of Appeal
    divided on the question. Atkin L.J. expressly stated that
    awareness of the fact of detention was unnecessary.
    Warrington L.J. who concurred in the result does not appear
    to have considered the question whether the knowledge was
    necessary and the report does not indicate whether this was
    a matter which was argued. The third member of the
    court, viz. Duke L.J., was of the opinion that a person
    could not claim to have been falsely imprisoned without
    knowledge of the fact of the denial of liberty. The opinion
    of Atkin L.J. has been subject to considerable criticism. In
    the first place it is plainly inconsistent with the decision of
    the Court of Exchequer in Herring v. Boyle (1834) 1 Cr. M.
    & R. 377, a decision of a court of equal authority which
    apparently was not cited to the court. Academic criticism
    of the opinion of Atkin L.J. may be found, for example, in
    Smith and Hogan, Criminal Law, 5th ed. (1983), pp. 385-386;
    Street on Torts, 7th ed. (1983), pp. 25-26; Winfield and
    Jolowicz on Tort,
    12th ed. (1984), pp. " 59-60 and
    Restatement of the Law of Torts, (1935) 83 U.Pa.L.Rev.
    411, 418. I consider that the conclusion in Herring v. Boyle
    is to be preferred to the dictum of Atkin L.J. which was
    not part of the ratio of the decision, and, therefore, that
    the plaintiff was not subject to imprisonment until formally
    arrested."

    Counsel for the plaintiff attacked the finding of the Court
    of Appeal that the plaintiff did not know that she was under
    restraint until she was told she was arrested. He submitted that
    it is an irresistible inference that once the armed soldiers had
    entered the house and the plaintiff had identified herself and had
    been told to get dressed, she must have realised that she was
    under restraint. It is true she says she asked if she was under
    arrest whilst dressing, but this is to be interpreted as a challenge
    to authority rather than as indicating any doubt in her mind about
    the fact of restraint. It is pointed out that Corporal Davies was
    actually with her as she was getting dressed which was when she
    said she asked the question. Counsel for the Ministry of Defence
    felt constrained to accept this part of the plaintiff's submission
    and, in my view, he was right to do so. The plaintiff was in fact
    under restraint in her house from the moment she was identified.
    Corporal Davies stayed with her throughout the time it took her
    to dress and prepare to leave, and the plaintiff must have realised
    that she was under restraint and was not free to leave the house.

    The next step in the plaintiff's argument is the submission
    that during the time that she was under restraint, between 7.00

    - 5 -

    and 7.30 a.m., she was not under arrest, and her arrest only
    commenced when she was told she was arrested at 7.30 a.m.
    Therefore, the plaintiff submits, the period of detention before
    arrest was unlawful and the Ministry of Defence liable for the tort
    of unlawful imprisonment during that period of half an hour whilst
    the plaintiff was getting dressed. If the plaintiff had been told
    she was under arrest the moment she identified herself, it would
    not have made the slightest difference to the sequence of events
    before she left the house. It would have been wholly unreasonable
    to take her off, half-clad, to the army centre, and the same half-
    hour would have elapsed while she gathered herself together and
    completed her toilet and dressing. It would seem a strange result
    that in these circumstances, whether or not she has an action for
    false imprisonment should depend upon whether the words of arrest
    are spoken on entering or leaving the house, when the practical
    effect of the difference on the plaintiff is non-existent.

    I do not accept the distinction drawn by the plaintiff's
    counsel between detention to the knowledge of the detainee and
    arrest. In Hussien v. Chong Fook Kam [1970] AC 942, Lord
    Devlin said, at p. 947:

    "An arrest occurs when a police officer states in terms that
    he is arresting or when he uses force to restrain the
    individual concerned. It occurs also when by words or
    conduct he makes it clear that he will, if necessary, use
    force to prevent the individual from going where he may
    want to go."

    In Spicer v. Holt [1977] A.C. 987, Viscount Dilhorne said, at p.
    1000:

    " 'Arrest' is an ordinary English word. . . . Whether or not
    a person has been arrested depends not on the legality of
    the arrest but on whether he has been deprived of his
    liberty to go where he pleases."

    In Mohammed-Holgate v. Duke [1984] A.C. 437, Lord Diplock said,
    at p. 441:

    "First, it should be noted that arrest is a continuing act; it
    starts with the arrester taking a person into his custody (sc.
    by action or words restraining him from moving anywhere
    beyond the arrester's control), and it continues until the
    person so restrained is either released from custody or,
    having been brought before a magistrate, is remanded in
    custody by the magistrate's judicial act."

    In the light of these authorities I can entertain no doubt that the
    plaintiff was under arrest from the moment that Corporal Davies
    identified her on entering the house at 7.00 a.m.

    The question remains, however, whether the failure to tell
    the plaintiff that she was being arrested until the soldiers were
    about to leave the house renders the arrest unlawful. It has been
    well-settled law, at least since Christie v. Leachinsky [1947] A.C,
    573, that a person must be informed of the reason for his arrest
    at or within a reasonable time of the arrest. There can be no
    doubt that in ordinary circumstances, the police should tell a

    - 6 -

    person the reason for his arrest at the time they make the arrest.
    If a person's liberty is being restrained, he is entitled to know the
    reason. If the police fail to inform him, the arrest will be held
    to be unlawful, with the consequence that if the police are
    assaulted as the suspect resists arrest, he commits no offence, and
    if he is taken into custody, he will have an action for wrongful
    imprisonment. However, it is made plain in the speeches in
    Christie v. Leachinsky that there are exceptions to this general
    rule.

    It is a feature of the very limited power of arrest contained
    in section 14 that a member of the armed forces does not have to
    tell the arrested person the offence of which he is suspected, for
    it is specifically provided by section 14(2) that it is sufficient if
    he states that he is effecting the arrest as a member of Her
    Majesty's forces. Corporal Davies was carrying out this arrest in
    accordance with the procedures in which she had been instructed
    to make a house arrest pursuant to section 14. This procedure
    appears to me to be designed to make the arrest with the least
    risk of injury to those involved including both the soldiers and the
    occupants of the house. When arrests are made on suspicion of
    involvement with the I.R.A., it would be to close one's eyes to the
    obvious not to appreciate the risk that the arrest may be forcibly
    resisted.

    The drill the army follow is to enter the house and search
    every room for occupants. The occupants are all directed to
    assemble in one room, and when the person the soldiers have come
    to arrest has been identified and is ready to leave, the formal
    words of arrest are spoken just before they leave the house. The
    army do not carry out a search for property in the house and, in
    my view, they would not be justified in doing so. The power of
    search is given "for the purpose of arresting a person," not for a
    search for incriminating evidence. It is however a proper exercise
    of the power of search for the purpose of effecting the arrest to
    search every room for other occupants of the house in case there
    may be those there who are disposed to resist the arrest. The
    search cannot be limited solely to looking for the person to be
    arrested and must also embrace a search whose object is to secure
    that the arrest should be peaceable. I also regard it as an
    entirely reasonable precaution that all the occupants of the house
    should be asked to assemble in one room. As Corporal Davies
    explained in evidence, this procedure is followed because the
    soldiers may be distracted by other occupants in the house rushing
    from one room to another, perhaps in a state of alarm, perhaps
    for the purpose of raising the alarm and to resist the arrest. In
    such circumstances a tragic shooting accident might all too easily
    happen with young, and often relatively inexperienced, armed
    soldiers operating under conditions of extreme tension. Your
    Lordships were told that the husband and children either had
    commenced, or were contemplating commencing, actions for false
    imprisonment arising out of the fact that they were asked to
    assemble in the living-room for a short period before the plaintiff
    was taken from the house. That very short period of restraint
    when they were asked to assemble in the living room was a proper
    and necessary part of the procedure for effecting the peaceable
    arrest of the plaintiff. It was a temporary restraint of very short
    duration imposed not only for the benefit of those effecting the
    arrest but also for the protection of the occupants of the house

    - 7 -

    and would be wholly insufficient to found an action for unlawful
    imprisonment.

    It was in my opinion entirely reasonable to delay speaking
    the words of arrest until the party was about to leave the house.
    If words of arrest are spoken as soon as the house is entered
    before any precautions have been taken to search the house and
    find the other occupants, it seems to me that there is a real risk
    that the alarm may be raised and an attempt made to resist
    arrest, not only by those within the house but also by summoning
    assistance from those in the immediate neighbourhood. When
    soldiers are employed on the difficult and potentially dangerous
    task of carrying out a house arrest of a person suspected of an
    offence in connection with the I.R.A., it is I think essential that
    they should have been trained in the drill they are to follow. It
    would be impracticable and I think potentially dangerous to leave
    it to the individual discretion of the particular soldier making the
    arrest to devise his own procedures for carrying out this unfamiliar
    military function. It is in everyone's best interest that the arrest
    is peaceably effected and I am satisfied that the procedures
    adopted by the army are sensible, reasonable and designed to bring
    about the arrest with the minimum of danger and distress to all
    concerned. I would however add this rider: that if the suspect,
    for any reason, refuses to accept the fact of restraint in the
    house he should be informed forthwith that he is under arrest.

    In the circumstances in this case it was, in my opinion,
    reasonable to speak the words of arrest as they were leaving the
    house and the failure to do so at an earlier time did not render
    the plaintiff's arrest unlawful. I therefore agree with the
    conclusion of the Court of Appeal that the plaintiff was not
    unlawfully imprisoned between 7.00 and 7.30 a.m. albeit my
    reasons for doing so are different from those of the Court of
    Appeal.

    Although on the facts of this case I am sure that the
    plaintiff was aware of the restraint on her liberty from 7.00 a.m.,
    I cannot agree with the Court of Appeal that it is an essential
    element of the tort of false imprisonment that the victim should
    be aware of the fact of denial of liberty. The Court of Appeal
    relied upon Herring v. Boyle, 1 Cr. M. & R. 377 for this
    proposition which they preferred to the view of Atkin L.J. to the
    opposite effect in Meering v. Grahame-White Aviation Co. Ltd.,
    122 L.T. 44. Herring v. Boyle is an extraordinary decision of the
    Court of Exchequer: a mother went to fetch her 10-year-old son
    from school on 24 December 1833 to take him home for the
    Christmas holidays. The headmaster refused to allow her to take
    her son home because she had not paid the last term's fees, and
    he kept the boy at school over the holidays. An action for false
    imprisonment brought on behalf of the boy failed. In giving
    judgment Bolland B. said, at p. 381:

    "as far as we know, the boy may have been willing to stay;
    he does not appear to have been cognisant of any restraint,
    and there was no evidence of any act whatsoever done by
    the defendant in his presence. I think that we cannot
    construe the refusal to the mother in the boy's absence, and
    without his being cognisant of any restraint, to be an
    imprisonment of him against his will; ..."

    - 8 -

    I suppose it is possible that there are schoolboys who prefer to
    stay at school rather than go home for the holidays but it is not
    an inference that I would draw, and I cannot believe that on the
    same facts the case would be similarly decided today. In Meering
    v. Grahame-White Aviation Co. Ltd.,
    the plaintiff's employers, who
    suspected him of theft, sent two of the works police to bring him
    in for questioning at the company's offices. He was taken to a
    waiting-room where he said that if he was not told why he was
    there he would leave. He was told he was wanted for the purpose
    of making inquiries about things that had been stolen and he was
    wanted to give evidence; he then agreed to stay. Unknown to the
    plaintiff, the works police had been instructed not to let him leave
    the waiting-room until the Metropolitan Police arrived. The works
    police therefore remained outside the waiting-room and would not
    have allowed the plaintiff to leave until he was handed over to
    the Metropolitan Police, who subsequently arrested him. The
    question for the Court of Appeal was whether on this evidence the
    plaintiff was falsely imprisoned during the hour he was in the
    waiting-room or whether there could be no "imprisonment"
    sufficient to found a civil action unless the plaintiff was aware of
    the restraint on his liberty. Atkin L.J. said, at pp. 53-54

    "It appears to me that a person could be imprisoned without
    his knowing it. I think a person can be imprisoned while he
    is asleep, while he is in. a state of drunkenness, while he is
    unconscious, and while he is a lunatic. Those are cases
    where it seems to me that the person might properly
    complain if he were imprisoned, though the imprisonment
    began and ceased while he was in that state. Of course,
    the damages might be diminished and would be affected by
    the question whether he was conscious of it or not. So a
    man might in fact, to my mind, be imprisoned by having the
    key of a door turned against him so that he is imprisoned in
    a room in fact although he does not know that the key has
    been turned. It may be that he is being detained in that
    room by persons who are anxious to make him believe that
    he is not in fact being imprisoned, and at the same time his
    captors outside that room may be boasting to persons that
    he is imprisoned, and it seems to me that if we were to
    take this case as an instance supposing it could be proved
    that Prudence had said while the plaintiff was waiting: 'I
    have got him detained there waiting for the detective to
    come in and take him to prison' - it appears to me that
    that would be evidence of imprisonment. It is quite
    unnecessary to go on to show that in fact the man knew
    that he was imprisoned. If a man can be imprisoned by
    having the key turned upon him without his knowledge, so
    he can be imprisoned if, instead of a lock and key or bolts
    and bars, he is prevented from, in fact, exercising his
    liberty by guards and warders or policemen. They serve the
    same purpose. Therefore it appears to me to be a question
    of fact. It is true that in all cases of imprisonment so far
    as the law of civil liability is concerned that 'stone walls do
    not a prison make,' in the sense that they are not the only
    form of imprisonment, but any restraint within defined
    bounds which is a restraint in fact may be an
    imprisonment."

    - 9 -

    I agree with this passage. In the first place it is not
    difficult to envisage cases in which harm may result from unlawful
    imprisonment even though the victim is unaware of it. Dean
    William L. Prosser gave two examples in his article in the
    Columbia Law Review, vol. 55 (June 1955), p. 847 ("False
    Imprisonment: Consciousness of Confinement"), in which he
    attacked section 42 of the Restatement of Torts which at that
    time stated the rule that "there is no liability for intentionally
    confining another unless the person physically restrained knows of
    the confinement." Dean Prosser wrote, at p. 849:

    "Let us consider several illustrations. A locks B, a child
    two days old, in the vault of a bank. B is, of course,
    unconscious of the confinement, but the bank vault cannot
    be opened for two days. In the meantime, B suffers from
    hunger and thirst, and his health is seriously impaired; or it
    may be that he even dies. Is this no tort? Or suppose
    that A abducts B, a wealthy lunatic, and holds him for
    ransom for a week. B is unaware of his confinement, but
    vaguely understands that he is in unfamiliar surroundings,
    and that something is wrong. He undergoes mental suffering
    affecting his health. At the end of the week, he is
    discovered by the police and released without ever having
    known that he has been imprisoned. Has he no action
    against B? ... If a child of two is kidnapped, confined,
    and deprived of the care of its mother for a month, is the
    kidnapping and the confinement in itself so minor a matter
    as to call for no redress in tort at all?"

    The Restatement of Torts has now been changed and requires that
    the person confined "is conscious of the confinement or is harmed
    by it" (Reinstatement of the Law, Second, Torts 2d (1956), section
    35, p. 52).

    If a person is unaware that he has been falsely imprisoned
    and has suffered no harm, he can normally expect to recover no
    more than nominal damages, and it is tempting to redefine the
    tort in the terms of the present rule in the American Restatement
    of Torts.
    On reflection, however, I would not do so. The law
    attaches supreme importance to the liberty of the individual and if
    he suffers a wrongful interference with that liberty it should
    remain actionable even without proof of special damage.

    I turn now to the complaint that the plaintiff was
    unlawfully detained at the Springfield Road Centre. It is rightly
    conceded by the plaintiff that a suspect arrested under section 14
    may be questioned to confirm or allay the suspicion on which he
    was arrested. It was however submitted that the right to ask such
    questions is confined to the person making the arrest. I can see
    nothing in the wording of the section which forbids anyone save
    the arrester to ask any questions of the suspect whilst they are in
    custody. Corporal Davies suspected the plaintiff solely because of
    what she had been told at the army briefing and questioning by
    her would have been unlikely to advance matters at all. On the
    other hand, questioning by a skilled interrogator, who is likely to
    have access to far more background information, may well either
    confirm the suspicion or show that it was mistaken, or, as appears
    to be the case here, that the grounds of suspicion were not
    sufficient to warrant handing over the suspect to the police. It

    - 10 -

    therefore seems sensible to carry out the questioning by a fully
    briefed and skilled interrogator. I reject the submission that the
    suspect cannot be asked questions other than by the arresting
    officer.

    The final objection to the detention at the Centre turns
    upon the state of the evidence in this case. The power of
    detention under section 14 is "for not more than four hours," and
    it is common ground that the burden is on the army to show not
    only that the period of detention did not exceed four hours but
    also that it did not exceed the time that was reasonably required
    to make a decision whether to release the suspect or to hand
    them over to the police. The member of the forces who carried
    out the interrogation between 8.20 and 9.35 a.m. was not called as
    a witness on behalf of the Ministry of Defence. There may have
    been sound reasons for this decision associated with preserving the
    confidentiality of interrogating techniques and the identity of the
    interviewer; but be that as it may, the only evidence of what took
    place at the interview came from Corporal Davies and the
    plaintiff and it is submitted that this evidence is insufficient to
    establish that the interview was directed towards an attempt to
    investigate the suspicion upon which the plaintiff was arrested.
    Corporal Davies was present at the interview, she was not paying
    close attention but she gave evidence that she remembered
    questions about the plaintiff's brothers and questions about money
    which were obviously directed towards the offences of which the
    plaintiff was suspected, the plaintiff also said she was questioned
    about her brothers.

    The judge also had before him a questionnaire that was
    completed by the interviewer. The questionnaire was in the
    standard form used as the basis for interviewing all suspects. It is
    directed to establishing information about the suspect, her relations
    and friends and about other matters which, although routine, may
    in fact tend to dispel or establish suspicion; it also provides space
    to record answers directly related to the suspected offence. It
    would be to ignore all experience of interview technique to limit
    questioning a suspect to two or three questions directly related to
    the suspected offence and I cannot accept the complaint of the
    plaintiff's counsel that the questionnaire formed an improper basis
    for questioning a suspect on the ground that it asked questions not
    directly relevant to the suspected offence. There is nothing in the
    questionnaire which the army may not reasonably ask the suspect
    together with such particular questions as are appropriate to the
    particular case. In fact the questionnaire in this case was wholly
    uninformative as the plaintiff refused to answer any of the
    interviewer's questions. The trial judge expressed himself as
    satisfied that the plaintiff "was not asked unnecessary or
    unreasonable questions." The Court of Appeal said:

    "There is no doubt, therefore, that the interviewer did
    attempt to pursue the subject of the suspicion which had
    been the occasion of her arrest but was unable to make any
    headway."

    I am satisfied that the evidence justified these conclusions and
    that there is no substance in this final ground of complaint. I
    would therefore dismiss this appeal.

    - 11 -

    LORD OLIVER OF AYLMERTON

    My Lords,

    I have had the advantage of reading in draft the speech of
    my noble and learned friend Lord Griffiths and, for the reasons he
    gives, I too would dismiss the appeal.

    LORD JAUNCEY OF TULLICHETTLE

    My Lords,

    I have had the advantage of reading in draft the speech of
    my noble and learned friend Lord Griffiths and, for the reasons he
    gives, I too would dismiss the appeal.

    - 12 -


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKHL/1988/13.html