Unjustified detention (C)

Question 1

What does Article 5 of the ECHR state?

Answer 1

(1) Everyone has the right to liberty and security of person. No one shall be deprived of this liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court.
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
etc.

Question 2

What must be established for D to be liable of unjustifiably detaining P?

Answer 2

1. P’s freedom of physical movement has been constrained by D.
2. D did not act with proper justification.

Question 3

What happened in MacKenzie v Cluny Hill Hydropathic Co Ltd 1907 SC 200?

Answer 3

• Woman supposedly slammed door in another woman’s face.
• Manager brought her downstairs and locked her in a room with the pursuer and her husband for 15 mins.
• SHOWS THERE IS NO DE MINIMUS RULE.

Question 4

What are some justifications for detention?

Answer 4

Private parties?
- Citizens’ arrest, requires ‘moral certainty’ that crime has been committed by P (Wightman v Lees 2000 SLT 111).

Police?
- W/ a warrant: clear justification (McKee v CC Strathclyde Police 2003 SC317).
- W/o a warrant: CJ(S)A16 s1 (power to arrest if reasonable suspicion).
- Louden v CC Police Scotland 2014 SLT (Sh Ct) 97.
- If not justified by warrant or statute, no need to prove malice.
- Whitehouse v Gormley [2018] CSOH 93.
- Malice necessary to overcome privilege of police?

Transport officers?
- Coutts v MacBrayne Ltd 1910 SC 386.
- “The captain of the ship is the person who, for very obvious reasons, has been… always considered to be invested with supreme authority over the persons in the ship… [for an action to lie] it must be shewn that he has exercised his powers in abuse of his privilege, that is to say… maliciously and without probable cause”. (Lord President Dunedin at 390)
- Regulation of Railways Act 1889, s5(2)
- Gives power to railway officers to detain passengers without tickets who are unwilling to give their name and address.

Immigration officers?
- Immigration Act 1971, Schedule 2(3), para 2(3).
- A person subject to a deportation order may be detained pending removal or departure from the UK.