Defences to Trespass Torts Flashcards
Ashley v Chief Constable of Sussex [2008]
Authority that for self-defence in tort, belief that you are under attack must be both HONEST and REASONABLE
(Whereas in Criminal is just honest)
Did not clarify…
- when D’s reasonable belief is formed from information by a 3rd party (e.g. police - Ashley’s history of violence)
- Pre-emptive strikes?
Revill v Newbury [1996]
Authority that for self-defence in civil law, force used must be REASONABLE and PROPORTIONATE.
Case similar to Tony Martin - D (civil) poked shotgun through hole in shed and fired indiscriminately, killing one of the robbers (C).
Chatterton v Gerson [1981]
P - leg pain - specialist operated on it but led to complications.
Brought action in trespass torts on basis that she had not been given proper information about procedure and thus could not make fully informed CONSENT (like Chester v Afshar (although before))
Rejected: HELD; consent works differently in trespass to negligence.
IN TRESPASS, YOU ARE CONSENTING TO THE INTERFERENCE WITH YOUR BODILY INTEGRITY, WHEREAS IN NEGLIGENCE, ONLY CONSENTING TO THE ACTIONS WITHIN THE SCOPE OF THE DUTY OF CARE.
Thus consent in trespass if you consent to the procedure in broad terms.
St. George’s Healthcare NHS Trust v S [1999]
Pregnant woman refused to consent to procedure to save her unborn baby - Doctors got court order and sectioned her under Mental Health Act 1982
She claimed in trespass.
Succeeded.
Autonomy.
Doctors can’t decide for you - don’t lose capacity just because doctors disagree with you.
Re B [2002]
Woman - tetraplegic - refused continuance of artificial respiration
Hospital felt she lacked mental capacity to make this decision.
Held; that doctors when assessing mental capacity of patient should not get confused by the consequences of the patient’s decisions.
Held that B possessed requisite mental capacity.
Therefore - giving her artificial respiration against her wish = unlawful trespass.
MENTAL CAPACITY ACT 2005
s.b. page 254
Now provides statutory defence to trespass torts - if complainant did not possess mental capacity to consent.
Key parts:
S.1
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
(5) An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
R. v Collins, ex parte Ian Stewart Brady [2000]
Brady - notorious murderer - had been detained in secure mental hospital.
Brought no. of claims against authorities.
Q: when he went on hunger strike, could the doctors lawfully force-feed him?
Held that they could: refusal to eat was not genuine decision but rather a manifestation of his personality/mental disorder.
Example where acting in C’s best interests goes against their express wishes.
R. v Bournewood Community and Mental Health NHS Trust, ex parte L
Weird case - autistic man looked after by carers - very agitated - admitted to hospital against carers’ will - didn’t detain under Mental Health Act as didn’t protest but would’ve def done if he tried to leave.
Carers challenged in false imprisonment
Rejected - held that tort not committed as wasn’t a locked ward
But felt the need to justify anyway - grounds of NECESSITY.
Went to ECtHR: L v United Kingdom
Ruled in favour of L (breach of Art. 5(1) and 5(4))
Cheshire West and Chester Council v P and Another [2014] UKSC
Case of 3 mentally ill/Down’s syndrome people confined in house together + restrictive clothing - didn’t protest ever but would not be allowed to leave.
C of A held that it was lawful as was in their best interests.
UKSC overruled - affirmed decision of ECtHR in L v United Kingdom
Breach of Art 5
____
HELD: LACK OF CAPACITY DOES NOT AUTOMATICALLY JUSTIFY TORT BEING COMMITTED
STILL NEED TO FIND LAWFUL JUSTIFICATION REGARDLESS OF LACK OF CAPACITY.
+
PERSON’S COMPLIANCE/LACK OF OBJECTION WAS IMMATERIAL, NOR WAS THE REASON BEHIND IT.
Commissioner of Police for the Metropolis v ZH [2013]
Autistic boy by edge of pool case.
Authority: to amount to the INDIVIDUAL’S BEST INTERESTS, THE ACTIONS MUST BE REASONABLE, PRACTICABLE AND APPROPRIATE.
Lawful Arrest/Prevention of Crime
General rule - a private citizen may use force in order to prevent crime of to effect an arrest, where an offence is being committed, or when an offence has been committed.
Commissioner of Police for the Metropolis v Raissi [2008]
To satisfy lawful arrest defence - must have reasonable grounds for suspicion.
Suspects of involvement in 9/11
Officer’s suspicion was only based on info from senior officer- did not himself have reasonable grounds for suspicion.
Armstrong v Chief Constable of West Yorkshire Police [2008]
Shows that courts allow degree of latitude when it comes to ‘reasonable suspicion’
Student raped - gave detailed description of the raper - police officer thought she knew who it was but turned out to be wrong person.
C of A - discretion to police - policy reasoning - suspicion need not be conclusive to still be able to invoke the lawful arrest/prevention of crime defence.
Criminal Law Act 1967 S.3
Can use such force as is REASONABLE in the circumstances in the prevention of crime or in effecting or assisting in the lawful arrest…
Roberts v Chief Constable of Kent [2009]
Funny case with police officer, takeaway pizza, outside compound with many thefts etc.
Fearing being breathalysed - legs it - dog catches him and pins him down then manages to run away again and dog gets him again - CS gas.
Dismissed R’s claim
Held that force used was reasonably and clearly satisfied defence under S.3 of the Criminal Law Act 1967
