Element 1: Restraint On Freedom Of Movement

Question 1

What types of restraint?

Answer 1

Physical rest

Question 2

What type of restraint?

Answer 2

Physical restraint

Conceptual restraint: threats to C or a threat to C about a third party

Question 3

Time limit?

Answer 3

There is no time limit, but the shorter the period, the less the damages and less worth suing

Question 4

Walker v CPM

Answer 4

C detained unlawfully for only seconds, could still bring a claim because there is no ‘de minimis’

Question 5

How large can the imprisonment be?

Answer 5

There is no definite answer but:

If exhaling c to an island where he can’t leave; then yes
If not issuing a passport and can’t leave UK? Then no, freedom of movement is not restricted.

Question 6

What must the restraint be?

Answer 6

An act, not an omission

Question 7

Innes v Whylie

Answer 7

Standing in a doorway is not false imprisonmemt

Question 8

Iqbal v Prison Officers Association:

Answer 8

“The general rule is that an omission or refusal to release the claimant from confinement will not amount to false imprisonment”

Question 9

Barkhuysen v Hamilton

Answer 9

An act can include “ a direct act of encouragement and procurement of the arrest with no lawful basis for doing so”

Question 10

What is the intention requirement?

Answer 10

No need to intend false imprisonment, just to imprison to restrain movement

Question 11

R v Governor of Brockill Prison

Answer 11

Prison governors argued that they had no intent to unlawfully restrain the prisoners, only lawfully to restrain. The court rejected the argument: unlawful motive is not necessary

Question 12

What about recklessness?

Answer 12

Reckless restraint is enough

Question 13

Iqbal per Smith LJ:

Answer 13

“If the defendant realises that the likely consequence of his act will be that the claimant is imprisoned and carried on with that act regardless of that likely consequence, that will amount to false imprisonment”

Question 14

What about negligence?

Answer 14

Negligence is not enough, if a security guard is negligent in checking a building and C has to stay the night, the claimant can not claim false imprisonment as intention or recklessness must be shown.

Question 15

What level of constraint is required?

Answer 15

Complete restraint. It can’t be a partial restraint

Bird v Jones
Robinson v Balmain New Ferry
Talbots v National Exhibition Co
McFadzean v CFEMU

Question 16

Bird v Jones

Answer 16

C brought a claim for false imprisonment, saying his freedom of movement was restrained by instructions of the security guard telling him he couldn’t go in a particular direction he wanted to. The court held: no false imprisonment. There was a restraint on freedom of movement but it was not a complete restraint. C maintained partial freedom.

Question 17

Robinson v Balmain New Ferry

Answer 17

The Victorian Supreme Court of NSW held: C was not completely restrained, he had the option to swim away (a bit harsh) or to wait 20 minutes to get on the ferry; therefore maintained partial freedom.

Question 18

Talbots v National Exhibition Co

Answer 18

Although there were other possible exits from the ticket office area, no one told C how to get out, so he believed he was completely restrained. D did nothing to dispute this. A false imprisonment claim could be brought. Although C was not in fact completely restrained, due to the actions of D, C believed this was the case.

Question 19

McFadzean v CFEMU

Answer 19

An Australian case: c’s weren’t completely restrained. They could have walked through the bush; only prevented by road. They could have asked the pickets to let them through as they did regarding a health treatment requirements. The court held: c will only be completely restrained where there are no reasonable means to escape.

Similar to Talcott: if the way of escape is not reasonably clear then c could argue they were completely restrained.

Question 20

What is it not reasonable to expect?

Answer 20

It’s not reasonable to expect C to injure themselves in order to escape restrainment

Question 21

Burton v Davies and General Accident Fire and Life Assurance Corporation Limited

Answer 21

“ if I lock a person in a room with a window from which he may jump to the ground at the risk of life or limb, I cannot… say that he was not imprisoned because he was free to jump from the window”

Question 22

What factors can we take into account when determining whether a means of escape is reasonable?

Answer 22

McFadzean: “there are four factors to be considered in determining whether a means of egress is reasonable. They are: threat or danger to the self, danger to property, distance and time; and legality.

Question 23

Danger to self:

Answer 23

Where means of escape are dangerous to a particular C, no reasonable means of escape. E.g. C is confined to a wheelchair, can not be expected to claim down a drainpipe.

The fears of the victim are taken into account, and unreasonable courage is not required.

Question 24

Danger to property

Answer 24

May not be considered reasonable

Question 25

Distance and time

Answer 25

May be unreasonable

Question 26

Legality?

Answer 26

Making an escape conditional on illegal conduct is not reasonable

Question 27

Does C need to know he or she is being restrained?

Answer 27

Meering v Grahame-White Aviation:

“A person could be imprisoned without knowing it. I think a person could be imprisoned while he is asleep… in a state of drunkenness… unconscious and while he is a lunatic”

However, this may reduce damages