(p. 345) 9. Intentional Interference
1. Introduction: The Meaning of Intentional Interference
English law does not acknowledge a single tort of ‘intention’ in the same sense that it acknowledges the existence of the tort of ‘negligence’. One reason for this is historical. Until the middle of the nineteenth century and before the forms of action were abolished, wrongdoing was remedied by variants of trespass or case. Liability for intentional conduct was distributed among these two, and over the years some forms of liability for intention acquired particular names, such as assault, battery, and so on. This did not happen with careless conduct, which fell under trespass or case depending on whether the resulting harm was direct or consequential. After the forms of action disappeared it became possible gradually to collate the nameless instances of liability for carelessness under the rubric ‘negligence’. In this way the new tort of negligence made its appearance. This was not possible with intention, however, since liability for intentional harm had already crystallised into the specific nominate torts which still exist today.
Intentional physical interference with the person may occur by way of an act that threatens violence (assault), amounts to unlawful contact (battery), or constitutes the deprivation of liberty (false imprisonment). There is, in addition, a residuary and uncertain form of liability for the intentional infliction of physical harm, known as the rule in Wilkinson v. Downton.1 These torts are normally actionable without proof of damage and they also involve a sharp distinction being drawn between an act and an omission: the latter will not normally suffice to ground liability. Malice is not a necessary ingredient of liability, but the defendant must have had the relevant intention. Although there are some equivocal dicta,2 modern case law takes the view on the whole that the defendant must not simply intend to commit the act in question; he must also intend the consequence, that is to say, the interference in question. This represents a change from the traditional point of view which effectively imposed strict liability once it had been shown that the interference derived directly from a positive act of the defendant, leaving the defendant to show that his case fell under one of a number of defences.3 The need to show fault was first clearly articulated in nineteenth-century decisions concerning accidents on the highway, and it has since been (p. 346) normal to analyse collision cases in terms of negligence and not in terms of trespass.4 Since then the extension of negligence liability following Donoghue v. Stevenson5 has reinforced this tendency. In Fowler v. Lanning6 the plaintiff simply alleged that the defendant had shot him, without alleging either intention or negligence. Diplock J held that this did not constitute a cause of action, on the basis that ‘trespass to the person does not lie if the injury to the plaintiff, although the direct consequence of the act of the defendant, was caused unintentionally and without negligence on the defendant’s part’. Diplock J would have preserved a category of negligent trespass to the person; Lord Denning MR went one step further in Letang v. Cooper7 by suggesting that: ‘when the injury is not inflicted intentionally, but negligently, I would say that the only cause of action is negligence and not trespass. If it were trespass, it would be actionable without proof of damage; and that is not the law today.’
One of the consequences of Fowler v. Lanning and Letang v. Cooper was to draw a distinction between intentional torts and torts based on a breach of duty which proved to be of considerable significance for the law governing limitation of actions.8 That distinction matters less than it used to thanks to the more recent decision of the House of Lords in A v. Hoare,9 which gave a reading of the relevant legislation which allowed claims in trespass to take advantage of flexibility in the application of limitation periods.10 The issue of limitation aside, it might be thought that the distinction between trespass and negligence does not greatly matter, since few actions are started in cases where no damage has been sustained. However, in narrowing the scope of the ‘interference’ torts by comparison to that of the tort of negligence, Fowler v. Lanning and Letang v. Cooper had wider consequences. The dominant position of the tort of negligence in the modern law of torts is a reflection of the tendency to focus on loss-spreading and to use the ‘fault principle’ as a basis for judging activity that causes damage. The function of the interference torts is not to engage in loss-spreading in the same way, but to affirm the fundamental importance of certain constitutional interests, such as personal bodily integrity and freedom of movement, in their own right.11 In this sense the torts of trespass to the person are similar in nature to the torts of interference with land and with chattels, which still bear clear signs of their origins as torts of strict liability. In these torts, the emphasis is less on the nature of the damage suffered and more on whether the defendant’s conduct can be characterised as ‘fault’, as on the nature of the interference with the claimant’s rights, in particular on whether it was direct or indirect and on whether, in the context of various defences, it can be characterised as justified or not.12
The decision of the House of Lords in Ashley v. Chief Constable of Sussex Police13 illustrates the continuing constitutional importance of the trespass torts. This case arose from (p. 347) a fatal shooting during a police raid on a residential home. The defendant accepted liability for negligence on the basis that the raid had been defectively planned and executed, but denied liability for assault and battery. The House of Lords held that the claims relating to trespass to the person should go to trial even though the defendant had undertaken to compensate the claimants in full for their losses, as the trespass action served the additional purpose of vindicating their rights.
But while a trespass action can in principle be used to vindicate constitutional rights, a successful claimant who suffers no damage may be left with no effective remedy. This is the effect of the decision of the Supreme Court in R (Lumba) v. Secretary of State for the Home Department,14 a case of false imprisonment arising from the operation by the defendant of an unlawful policy of detaining all convicted foreign nationals pending their deportation. The policy was unlawful because it was unpublished and in contradiction of the published policy at the time which was to detain convicted foreign prisoners under these circumstances only if circumstances demanded it. The Supreme Court held that the breach of public law resulting from the operation of the unpublished policy rendered the detentions of the claimants unlawful, with the result that their claims for false imprisonment succeeded. However, the Court ruled by a majority that only nominal damages should be awarded because the claimants had suffered no loss: they would have been detained had the correct policy been followed. Nor, for related reasons, was this an appropriate case for the award of exemplary damages. The Court rejected an argument that in a case such as this, a separate head of ‘vindicatory’ damages was available to reflect the constitutional importance of the rights at stake.15
The conduct forbidden by this tort is an act that threatens violence, or in other words, one that intentionally induces in the claimant a reasonable expectation of immediate, unlawful force.16 The tort is actionable per se. Assault is both a tort and a crime; the relevant principles of law apply to both. The actual application of force is known as the tort of ‘battery’, and the term ‘assault’ is used in both ordinary and (sometimes) in legal speech to refer to both the threat and the application. The two torts are distinct, however, in that there may be an assault without an actual blow17 and a battery without an assault where, for example, a sleeping person is hit or there is a blow from behind.
The threat must relate to immediate force; a threat of more remote future force is not enough.18 The reaction induced in the claimant need not be fright as such, merely the apprehension of force.19 As long as the claimant reasonably expects immediate force, the defendant’s ability actually to apply it is not essential. It follows that the necessary intention is the intention to produce an expectation that force is about to be used, or recklessness as to this consequence.20 Pointing an unloaded gun at the claimant is common-law assault if he does not know it is unloaded;21 and it is still assault even though the claimant manages to escape in time,22 or if the defendant is restrained before actually hitting him.23 Words by (p. 348) themselves do not constitute an assault.24 They could be used, however, to invest an otherwise innocuous act with menace, as when a person strolls up to another uttering threats; conversely words may negative the threat which would otherwise have arisen. In Tuberville v. Savage25 the defendant laid his hand on his sword, saying as he did so: ‘if it were not assize time, I would not take such language from you’. Since the words made it clear that the threat would not be carried out, this was held not to be an assault. On the other hand, words that do not negative a threat as such but which make it conditional in some way will not prevent there being an assault. In Read v. Coker26 the menacing gesture was accompanied by a threat to break the plaintiff’s neck unless he ‘got out’, and the defendant was held liable for assault. The need for a threat of force means that mere passive obstruction is not assault, as when a person simply stands in front of another in order to obstruct him, but without touching or threatening him.27
The tort of battery consists of a direct act of the defendant resulting in an undesired contact with the person of the claimant. The contact must be intentional.28 At the same time, though, it need only be nominal: ‘the least touching of another in anger is a battery’.29 For example, in Ashton v. Jennings30 an act of placing a hand on another to assert social precedence was held to be a battery.
In Wilson v. Pringle31 the Court of Appeal held that the touching has to be ‘hostile’, but this seems contrary to authority and is probably incorrect. The need to find some element of hostility was thought to arise in order to avoid the conclusion that incidental contact on the street or in a crowd can constitute battery. However, in Re F32 Lord Goff, invoking an earlier judgment of his own in Collins v. Wilcock,33 argued that an
exception has been created to allow for the exigencies of everyday life: jostling in a street or some other crowded place, social contact at parties and such like. This exception has been said to be founded on implied consent, since those who go about in public places, or go to parties, may be taken to have impliedly consented to bodily contact of this kind. Today this rationalization can be regarded as artificial: and, in particular, it is difficult to impute consent to those who, by reason of their youth or mental disorder, are unable to give their consent. For this reason I consider it more appropriate to regard such cases as falling within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of everyday life.
The requirement that a touching be ‘hostile’ was incompatible, according to Lord Goff, with the basic principle that ‘any touching of another’s body is, in the absence of lawful excuse, capable of amounting to a battery and a trespass’. Other authorities suggest that what Holt CJ called ‘anger’ should not be taken literally. Stealing a kiss is a battery even though the (p. 349) intention may be far from ‘hostile’.34 Lord Goff’s test of what is acceptable in everyday life would exclude from liability the case of a person touching another in the course of conversation or slapping a person on the back by way of congratulation. In Wainwright v. Home Office35 Lord Hoffmann confirmed Lord Goff’s approach, defining a battery as ‘a touching of the person with what is sometimes called hostile intent but which [Lord Goff] redefined as meaning any intentional physical contact which was not “generally acceptable in the ordinary conduct of human life”’.
The contact must be direct. In Dodwell v. Burford36 the defendant struck the horse on which the plaintiff was riding and he was thrown off; the court held that there had been a battery. It is arguable, however, that the plaintiff’s fall was consequential, for which the appropriate action at that time would have been in case and not in trespass. With the abolition of the forms of action it no longer matters whether the claim is framed as case or trespass, but some difficulty remains over the precise scope of the modern tort of battery. It seems that there could be liability where the interference is brought about intentionally but indirectly, as, for example, by daubing the inside of the claimant’s hat with filth as a joke so that he dirties his hair. Winfield referred to this category as ‘intentional physical harm other than trespasses to the person’, but the American Restatement of Torts37 includes it within the scope of battery; this would extend the tort to cover wilful acts of the kind which may lie within the rule in Wilkinson v. Downton.
The need for the contact to be intentional has already been noted. It has been held that the intention need not be present at the commencement of the relevant act, provided it is formed while the act is still continuing. In Fagan v. Metropolitan Police Commissioner38 the defendant unintentionally stopped his car on a policeman’s foot. When told to get off he deliberately delayed doing so. He was held guilty of criminal assault because his later intention to inflict an unlawful contact was directed to a continuing act.
Since assault and battery are crimes as well as torts, statute has made provision for avoiding unnecessary double process. Criminal proceedings will be a bar to further civil proceedings where the hearing was a summary one and ended, after a hearing on the merits, either with a certificate of dismissal or with the accused being convicted and either being imprisoned or paying the fine levied on him.39 However, these provisions do not prevent civil actions being brought in respect of more serious crimes tried on indictment; nor do they prevent action being brought against those who, for one reason or another, are not prosecuted.40
Consent operates as a defence to the tort of battery, within certain limits. This issue is particularly important in cases of medical treatment. As Lord Browne-Wilkinson put it in Airedale NHS Trust v. Bland,41 in general ‘any treatment given by a doctor to a patient which is invasive (i.e. involves any interference with the physical integrity of the patient) is unlawful unless done with the consent of the patient: it constitutes the crime of battery and the tort of trespass to the person’. However, this statement is simply the beginning of the (p. 350) analysis. It is necessary, first, to consider what amounts to consent, and whether apparent agreement can be vitiated. Consent must be ‘real’ in the sense of not being induced by fraud or misrepresentation. This does not mean that a doctor who fails to give a patient full information prior to an operation will necessarily be liable in trespass. His liability in negligence will depend on the so-called Bolam42 test, which asks whether his practice conformed with that of a respectable body of opinion within the relevant part of the medical profession, with the rider, added by the House of Lords in Sidaway v. Bethlem Royal Hospital,43 that there might be circumstances in which the nature of the risks in question would dictate disclosure regardless of the normal practice. However, the question whether the defendant conformed to the necessary standard of care in advising the patient is separate from the question whether the patient has given his consent to surgery: ‘justice requires that in order to vitiate the reality of consent there must be a greater failure of communication between doctor and patient than that involved in a breach of duty’ in negligence.44 In Chatterton v. Gerson Bristow J thought that ‘once the patient is informed in broad terms of the nature of the procedure which is intended, and gives her consent, that consent is real, and the cause of action on which to base a claim for failure to go into the risks and implications is negligence, not trespass’.45 It might be different, perhaps, if a surgeon, through error, carried out a circumcision on a patient when he was meant to undertake a tonsillectomy.46 The point is that the patient’s consent to being operated on is broadly effective to protect the surgeon in respect of that type of operation. If the surgeon makes an error leading to the failure of the operation, the claimant’s complaint is not that he was operated on against his will but that the outcome of the operation was detrimental to him.47 Additional protection for the surgeon derives from the ruling in Freeman v. Home Office (No. 2)48 to the effect that the burden of proving that consent to treatment was not given lies on the patient.
Subject to the need to show proof of consent, then, an adult of sound mind is entitled to refuse to agree to medical treatment. A doctor who respects this wish does not commit the crime of aiding and abetting a suicide if the patient dies as a result;49 indeed, he would normally be liable in trespass if he continued the treatment against the patient’s wishes. This means, for example, that a patient on a life-support system can, if in full possession of his faculties and if properly informed, insist that the life-support system be switched off.50 It is also possible that a patient might indicate his wishes in advance of falling unconscious or being unable to express his will clearly, although the court would have to be sure that the conditions for the removal of medical treatment had been met and that the prior expression of will remained fully effective.51
As far as medical treatment of children is concerned, much depends on whether the child is old enough to appreciate the significance of what is being proposed, but this is subject to (p. 351) the court’s inherent power to make a child a ward of court and to take decisions on his or her behalf in what are deemed the child’s best interests. The starting-point is section 8 of the Family Law Reform Act 1969 which provides that a child over the age of sixteen may consent to medical treatment without seeking the consent of his parent or guardian. In Gillick v. West Norfolk Area Health Authority52 the House of Lords held that a child under the age of sixteen who possessed ‘sufficient understanding and intelligence’ could consent to the receipt of contraceptive advice and treatment without the consent of her parents. For young children the consent of the parents is usually necessary and sufficient. Where there is doubt or the views of the parents are in conflict, the child can be made a ward of court and the doctor can then seek the court’s permission to carry out the operation. In Re P (A Minor)53 a child’s father objected to the termination of her pregnancy. Her local authority made her a ward of court and the court’s consent to the operation was granted. In Re B (A Minor)54 a child of seventeen with a mental age of five or six was made a ward of court, following which the court gave leave for her to be sterilised with the agreement of her mother and of the local authority. In some cases, however, the courts have gone further and used their inherent jurisdiction to consent to medical treatment on a child’s behalf, even though the child was of an age where she was competent to refuse consent.55 Once the child is a ward of court, the court will, in effect, decide what is in ‘his best interests’, having regard to appropriate medical opinion and the views of parents even though they may be in conflict with those of the child.56
In Re A (Children) (Conjoined Twins: Surgical Separation)57 the court was called on to exercise its wardship jurisdiction in deciding whether to authorise an operation to separate conjoined twins. If the operation was carried out, one of the twins (Jodie) stood a good chance of surviving, but the other (Mary) was certain to die within minutes. If the operation was not carried out, the life expectancy of both of the twins was limited to a few months at most. The parents refused to give their approval to the operation; thus, without the court’s intervention, the operation to separate them would have amounted to a battery. Both at first instance and in the Court of Appeal, it was held that the balance of interests of the twins lay in favour of granting permission to carry out the operation. The court also considered whether there would be a breach of the criminal law if the operation went ahead. Ward LJ considered that, by intervening, the surgeons would be coming to Jodie’s defence; the same argument would presumably have been available to defeat any civil-law claim of trespass to the person. Brooke LJ, again considering this issue in the context of the criminal law, held that the defence of necessity was made out on the facts. While the case has limited significance for tort law by comparison to its momentous importance for medical and criminal law, it indicates the growing importance attached to the defence of necessity in cases of medical treatment.58
Thus, the defence of necessity is increasingly to the fore in cases involving medical treatment administered to adults without their consent, where the wardship jurisdiction is irrelevant.59 It is well established that necessity may be a defence in the context of an emergency (p. 352) that compels a rescuer to act. In Re F Lord Goff said: ‘to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, citing in the best interests of the assisted person’. ‘Officious’ intervention would not therefore be protected, but action taken by rescuers or carers in an emergency would be. Where, following a railway accident, passengers are trapped in the wreckage, ‘it is this principle which may render lawful the actions of other citizens, railway staff, passengers or outsiders, who rush to give aid and comfort to the victims: the surgeon who amputates the limb of an unconscious passenger to free him from the wreckage; the ambulance man who conveys him to hospital; the doctors and nurses who treat him and care for him while he is unconscious’.60 Similarly, ‘it very commonly occurs that a person, due to accident or some other cause, becomes unconscious and is thus not able to give or withhold consent to medical treatment. In that situation it is lawful, under the principle of necessity, for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient.’61
Legislation62 governs the circumstances under which treatment can be administered to mental patients in respect of their mental health, but the legality of other forms of treatment falls to be determined by the common law. In Re F the House of Lords invoked the principle of necessity to authorise a sterilisation operation to be carried out on a woman of thirty-six whose mental age was such that she could not give her consent to the operation. According to Lord Brandon, ‘a doctor can lawfully operate on, or give other treatment to, adult patients who are incapable, for one reason or another, of consenting to his doing so, provided that the operation or other treatment concerned is in the best interests of such patients’,63 the notion of ‘best interests’ being decided according to the Bolam test of respectable medical practice.64 In Re Y (Mental Incapacity: Bone Marrow Transplant)65 this principle was extended to a case in which permission was sought to carry out a bone marrow transplant on the defendant, who was mentally incapacitated, for the benefit of her sister. The court granted permission on the basis that the defendant’s own interests, in the context of a very tight-knit family, would be served by her sister’s survival.
But the idea that necessity can overcome the absence of consent does not, it seems, cover cases in which an adult patient of sound mind consciously refuses medical treatment. In St George’s Healthcare NHS Trust v. S66 the defendant, who was pregnant, was diagnosed with a condition which was life-threatening both to herself and to her unborn child. She was advised to agree to delivery of the child by caesarean section but she declined. The plaintiff NHS Trust obtained a court order authorising it to carry out the operation against the defendant’s wishes, which it then proceeded to do, successfully. On appeal from the initial ruling, the Court of Appeal ruled that the judge had been wrong to grant the hospital’s application, since even consideration of the right to life of the unborn child did not justify, in this case, interference with the mother’s right to self-determination and physical autonomy. In general, necessity is much less likely to apply as a defence to the torts of trespass to the person than it is to the torts of trespass to property. Although ‘the necessity for saving life has at all times been considered a proper grounds for inflicting such damage as may be necessary upon another’s property’,67 it does not follow that interference with physical (p. 353) integrity can so easily be justified. In Leigh v. Gladstone68 force-feeding a prisoner, in this case a suffragette, was held to be lawful; but since that time (1909) the practice has not been carried on by the prison authorities and this first instance judgment almost certainly does not now represent the law.69 It is also doubtful whether lawful authority will amount to a defence in cases of physical interference beyond the clear cases in which specific statutory authority is provided, for example, for the exercise of police powers.70
In Airedale NHS Trust v. Bland71 the courts were faced not with the question whether treatment could be administered to a patient without his consent, but whether it could be withheld under circumstances where it was impossible to ascertain what the patient’s wishes were. The patient sustained injuries that caused him to suffer brain damage, as a result of which he was unable to respond to any external stimuli. He had to be fed by a tube inserted into his nose and stomach, and medical staff were required to take steps to ensure that he remained free of infections which would otherwise have been fatal to him. In the words of the President of the Family Division,72 ‘there is simply no possibility whatsoever that he has any appreciation of anything that takes place around him’. Doctors treating him, who were unanimously of the opinion that he had no prospect of recovery, made an application for a declaration that medical treatment could lawfully be withdrawn notwithstanding the patient’s inability to give his consent; the application was supported by the patient’s parents.
There was no question in this case of applying the wardship jurisdiction; the patient, who was seventeen when he sustained his injuries, was aged twenty-one at the time the case was brought to court. Lord Goff, giving the leading judgment in the House of Lords,73 said that there was no absolute rule that a patient’s life had to be prolonged by treatment or care regardless of all the circumstances; the patient’s right of self-determination, which meant that he could withhold consent for medical treatment, qualified the principle of the ‘sanctity of life’. It was, moreover, inconsistent with the principle of self-determination that the law should provide no means of enabling treatment to be lawfully withheld in a case where the patient was in no condition to indicate whether or not he consented to treatment being continued. The difficulty was whether the doctor could be held civilly or criminally liable for his failure to treat the patient. In this regard, Lord Goff considered that there was a fundamental difference between a case in which a doctor sought to bring life to an end by a positive act of commission—by, for example, administering a fatal overdose—and one in which he discontinued life-saving treatment. The latter could be accurately characterised as an omission and could give rise to liability only in circumstances where the doctor was under an affirmative duty of action. The central question, then, concerned the precise extent and scope of the doctor’s duty to his patient in these circumstances. This was to act according to the ‘patient’s best interests’ in accordance with the Bolam test, subject to the need to seek the court’s opinion by obtaining a declaration on an originating summons, the procedure laid down for such cases in Re F.
The House of Lords unanimously agreed that the declarations sought should be granted on the basis that it was in the patient’s best interests that the treatment should be discontinued. There was no support for the approach taken in certain American cases, namely to seek (p. 354) a ‘substituted view’ of the patient’s wishes based on evidence either of his own personal attitude, in the past, to the question of termination of life in the event of incurable illness, or on a number of different factors such as his former character and feelings. As Lord Mustill said, such an approach to fictive consent ‘is surely meaningless’.74 On the other hand, the view that it was in the patient’s best interests for the treatment to be terminated was based on the problematic distinction, in this context, between acts and omissions, which seems less than convincing as a basis for granting the declarations requested. Lord Mustill also cast doubt on the appropriateness of using the Bolam test of medical practice in this context: ‘I accept without difficulty that this principle applies to the ascertainment of the medical raw material such as diagnosis, prognosis and appraisal of the patient’s cognitive functions. Beyond this point, however, it may be said that the decision is ethical, not medical, and that there is no reason in logic why on such a decision the opinions of doctors should be decisive.’75
In NHS Trust A v. M76 the Bland decision was challenged on grounds deriving from the Human Rights Act 1998. Specifically, it was argued that the withdrawal of treatment from patients in a permanent vegetative state contravened the right to life in Article 2 of the European Convention, and that a breach of Article 3, concerning the prohibition on inhuman and degrading treatment, would also occur during the interval between the ending of treatment and the death of the patient. However, the President of the Family Division, Dame Elizabeth Butler-Sloss, ruled that a responsible decision by a medical team to withhold treatment which passed the Bolam test would not amount to the intentional deprivation of life as required by Article 2. Nor would there be a breach of Article 3 if the decision was shown to be in the best interests of the patient.
But the Bolam test does not apply in a case where a terminally ill patient wishes to end his own life with the assistance of another. Here, the patient’s consent is deemed irrelevant on public-policy grounds; the issue of what amounts to generally acceptable medical practice does not arise; and the person who helps the patient to die will be subject to both civil and (more relevant in practice) criminal sanctions. Assisting suicide is a crime under the Suicide Act 1961. In Pretty v. DPP77 the House of Lords ruled that this statutory prohibition was not contrary to the Human Rights Act 1998. The plaintiff, Diane Pretty, suffered from a fatal degenerative condition, motor-neurone disease, and wished to end her life, but was not in a position to do so simply by refusing to receive medical treatment. She sought a declaration that her husband would not face prosecution under section 2(1) of the Suicide Act 1961 if he helped her to commit suicide. Her application was denied. The House of Lords rejected her argument that under Article 2 of the Convention the right of self-determination implied a right to assistance in ending her life; it also ruled out her claim that the prohibition on assisted suicide infringed her right to dignity and the protection of private life under Article 8. The European Court of Human Rights subsequently reached a similar conclusion: although Article 8 was applicable in this case, it was permissible under Article 8(2) to qualify the protection of private life by reference to a countervailing interest, here the need to safeguard the terminally ill against pressure to consent to an assisted death.78
Consent and necessity may arise as defences to trespass to the person in other contexts. Consent may be a defence to a criminal conviction for assault, but again this is subject to the possibility that consent will be negatived by public policy. In Re F Lord Griffiths said that ‘although the general rule is that the individual is the master of his own fate the judges through the common law have, in the public interest, imposed certain constraints on the harm that people may consent to being inflicted on their bodies’. Examples include participation in a prize-fight, fighting in circumstances likely to give rise to actual bodily (p. 355) harm, and serious bodily injury inflicted as part of sexual practices.79 In Bland Lord Mustill referred to consent being a defence both to criminal assault and to a claim in tort ‘at the bottom end of the scale’. He then suggested that ‘whatever the scope of the civil defence of volenti non fit injuria there is a point higher up the scale than common assault at which consent in general ceases to form a defence to a criminal charge … . If one person cuts off the hand of another it is no answer to say that the amputee consented to what was done.’80
The defendant may also invoke self-defence in an appropriate case. The force used by the defendant to defend himself must not be out of proportion to the force exerted against him, as it was in Lane v. Holloway where a provocative blow by the plaintiff did not excuse a savage retaliation;81 nor will the defence avail one who, in seeking to defend himself, strikes an innocent bystander.82 Although an honest but unreasonable belief may suffice for the defence to operate in a criminal law context, this is not the case in tort claims, where the defendant must show that his conduct was reasonable: as Lord Scott put it in Ashley v. Chief Constable of Sussex Police,83 ‘to hold, in a civil case, that a mistaken and unreasonably held belief by A that he was about to be attacked by B justified a pre-emptive attack in believed self-defence by A on B would … constitute a wholly unacceptable striking of the balance’ between the rights of the parties.
The relevance of contributory negligence in this context is not completely clear. It was held to have no application in Lane v. Holloway,84 but in Murphy v. Culhane85 it was suggested that the defence would have applied in circumstances where the plaintiff initiated a criminal affray in the course of which he was killed, had not total defences been available in the form of consent and illegality. But there is authority pointing to a very restricted application of contributory negligence in the context of the intentional torts,86 and on principle it would seem to have little role to play, since the process of shifting loss through apportionment does not have the relevance here that it does in relation to the tort of negligence.
4. False Imprisonment
The tort of false imprisonment consists of the complete restriction of the claimant’s freedom of movement without lawful excuse or justification. The tort is actionable per se, that is, without proof of damage.87
The restriction of the claimant need not take the form of confinement in a room or prison cell: according to the Termes de la Ley, ‘imprisonment is the restraint of a man’s liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man’s (p. 356) own house, as well as in the common gaole’.88Imprisonment does not have to involve seizure of the claimant; touching and informing him that he is under arrest are sufficient.89 Nor does it have to be for a prolonged period of time: confinement for just a few seconds could suffice.90
However, the restraint must be complete; that is to say, the claimant’s freedom of movement has to be impeded in every direction. There is a distinction to be drawn here between confinement and obstruction. It is not sufficient to prevent a person from going forward if he is free to go back, or vice versa. In Bird v. Jones91 a section of Hammersmith Bridge was temporarily fenced off. The plaintiff, who insisted on climbing over the fence to go forward, was prevented from doing so, but was told he could go back instead. The court held that he had not been falsely imprisoned and held that his attempt to go forward was a breach of the peace, for which he had been lawfully arrested. By contrast, in Austin v. Metropolitan Police Commissioner, there was a clear case of containment where the police, fearing a breach of the peace, confined several hundred people for several hours in a ‘closed cordon’ around Oxford Circus in central London, an area of only fifty metres in diameter.92
In Bird v. Jones, an avenue of escape was available. To avoid a finding of imprisonment on these grounds, the escape route in question must be reasonably accessible and safe. Thus, it would not normally be false imprisonment to turn the key on a person in a room on the ground floor from which he could easily escape by stepping out of a window, but it would be a different matter if the room were several storeys up in a block of flats.
In R v. Bournewood Community and Mental Health NHS Trust, ex parte L93 the House of Lords held by a bare majority that there was no false imprisonment in a case where an ‘informal’ mental patient was kept on an unlocked ward in a mental hospital under circumstances where he showed no desire to leave. His consultant would have applied for an order for his detention under the Mental Health Act 1983 had he tried to leave the hospital. The majority held that he was not being detained against his will. On this point, the decision seemed highly dubious; as Lords Nolan and Steyn pointed out in their dissents, the patient was kept under sedation and would have been physically restrained from leaving had he attempted to.
Not surprisingly, the Bournewood case was the subject of a subsequent claim for a breach of Article 5 of the European Convention on Human Rights. This Article provides that ‘Everyone has the right to liberty and security of the person’ and stipulates that ‘No one shall be deprived of his liberty’ save in one of a number of specified cases and according to a procedure prescribed by law. These include, under Article 5(1)(e), ‘the lawful detention of … persons of unsound mind’. In HL v. United Kingdom94 the European Court of Human Rights held that the applicant had been detained contrary to Article 5. The Court decisively rejected, as inappropriate in respect of the Convention, the narrow reading of the concept of containment which had prevailed in the House of Lords:
Considerable emphasis was placed by the domestic courts, and by the [UK] Government, on the fact that the applicant was compliant and never attempted, or expressed the wish, to leave. The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The Court does (p. 357) not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the Court accept as determinative the fact relied on the by the Government that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The Court reiterates that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention … especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.
The Court went on to find that the UK government had failed to make out a defence under Article 5(1)(e), on the grounds that there were insufficient procedural safeguards to protect against an arbitrary deprivation of liberty.
The judgment in the Bournewood case appeared to open up a gap between the common law tort of false imprisonment and the right not to be deprived of liberty and security of the person under Article 5. In contrast to the common law’s insistence on the need for complete restraint of movement for there to be a ‘confinement’, the starting-point under Article 5, according to the European Court of Human Rights, ‘must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question’; thus, ‘the distinction between a deprivation of, and a restriction of, liberty is merely one of degree of intensity and not one of nature or substance’.95 This pointed to the possibility of the Article 5 claim superseding or outflanking the common law of false imprisonment in cases involving public defendants. However, in Austin v. Metropolitan Police Commissioner96 the Court of Appeal and House of Lords both held that where an interference with freedom of movement, in this case the ‘kettling’ or prolonged cordoning of a crowd with a view to protecting the public from the risk of violence, could be justified on the grounds of necessity, there was no ‘deprivation of liberty’.97 When this case was litigated before the European Court of Human Rights, the claim for breach of Article 5 was again rejected, the Court ruling that the capacity of the police to maintain public order had to be weighed in the balance in determining the scope of the Article.98 However, there can be circumstances in which a breach of Article 5 occurs where there is no tort of false imprisonment, for example where there is undue delay in investigating an alleged crime for which a person has been remanded in custody.99
As far as the tort is concerned, it is not necessary that the claimant should have been aware of his imprisonment at the time of confinement. This point has given rise to some difficulty in the case law. In Herring v. Boyle100 a mother went to fetch her son from a private school but was not allowed to remove him until she had paid the bill. The court held that the boy had not been falsely imprisoned because there was nothing to show that ‘the plaintiff was at all cognisant of (p. 358) any restraint’. What is not clear from the report, however, is whether the boy was imprisoned at all, quite apart from the question of his knowledge. In Meering v. Graham-White Aviation Co. Ltd.101 the Court of Appeal held that knowledge of confinement was not necessary, but the authority is impaired by the failure of the court to cite Herring v. Boyle. Meering is preferable on the ground of policy, however, not only is there a general interest in upholding individual liberty which goes above and beyond individual circumstances, but the individual concerned may feel equally aggrieved to find out after the event that he was the subject of an unjustified confinement. This view was endorsed by the House of Lords in Murray v. Ministry of Defence.102 The plaintiff was detained in her house for half an hour by soldiers, who were searching for terrorist suspects, without being told that she was under arrest, following which she was further detained at a screening centre. She failed in her action for false imprisonment because the defendants had lawful authority to act as they did under section 14 of the Northern Ireland (Emergency Provisions) Act 1978. On the point of knowledge, Lord Griffiths stated obiter that: ‘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 … [but] 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’.
The confinement must take the form of a direct interference with the claimant’s liberty; an omission leading to confinement will not normally suffice. In Iqbal v. Prison Officers Association103 the claimant argued that he had been falsely imprisoned when, as a result of a strike of prison officers, for which there was no lawful authority, he was confined to his prison cell for the day, when normally he would have been allowed to move more freely around the prison. The claim against the Association which had called the strike failed on the grounds that the prison officers had not taken any positive steps to restrain the claimant; they had merely failed to report for work. The immediate cause of the claimant’s confinement was the decision of the prison governor to restrict the movement of inmates for the duration of the strike action.104 But although a positive act is generally required, an omission will suffice where the claimant has a legal right to be released from confinement and the defendant has a legal duty to release him. Thus a prison governor who failed to release a prisoner on the due date could, in principle, be liable for false imprisonment.105
A person may be restrained by the defendant either acting personally or through someone else, usually an official. In the latter case a distinction was drawn in a number of nineteenth-century cases between a ‘ministerial’ act and a ‘judicial’ act.106 A ‘ministerial’ act, in this sense, consists of an act of the official where he is merely the instrument or agent of the defendant, so that it is the latter who will be liable for the imprisonment.107 A ‘judicial’ act is one where the official exercises his own judgement:108 in this case the person who initiated the process is not normally liable for false imprisonment although he may be liable for malicious prosecution or malicious abuse of process.109 It is also possible that a claim may lie in an appropriate case for the tort of misfeasance in a public office.110
(p. 359) The basic distinction between these categories of cases was reaffirmed by the Court of Appeal in Davidson v. Chief Constable of North Wales and Another.111 The second defendant, a store detective, gave information to the police that led to the arrest of the plaintiff on suspicion of shoplifting. She and a friend were detained by the police for two hours until they were released when it became clear that the store detective’s suspicions had been unfounded. The plaintiff’s claim against the store detective for false imprisonment was struck out as disclosing no cause of action, a ruling that was upheld on appeal: according to Sir Thomas Bingham MR, ‘what distinguishes the case in which a defendant is liable from a case in which he is not is whether he has merely given information to a properly constituted authority on which that authority may act or not as it decides or whether he has himself been the instigator, promoter and active inciter of the action that follows’.112
It is not altogether clear whether ‘intention’ in the tort of false imprisonment refers to an intention to confine the plaintiff or an intention to perform the act that results in imprisonment. If the defendant commits an act resulting in imprisonment without realising what he is doing, but in circumstances where he could be described as negligent, is he liable for the tort of false imprisonment which, in contrast to negligence, is actionable per se? Although the point remains open, there is a case for saying that the need to uphold personal liberty requires the broadest possible interpretation to be given to false imprisonment. On the other hand, modern decisions on the mental element in the tort of battery, while not strictly in point, suggest that there is no tort in a case where the defendant neither intended the consequences of his act nor was reckless or negligent with regard to them.113 Consistently with this approach, in Iqbal v. Prison Officers Association114 the Court of Appeal took the view that there was no liability for false imprisonment arising from an unlawful strike of prison officers in part because an intention to confine on the part of the defendants was lacking. According to Smith LJ, ‘with false imprisonment, the loss of liberty is the essence of the tort, and … the claimant must show not merely an intentional act … but also an intention to deprive the claimant of his liberty’.115 Some guidance on this point may be inferred from R v. Governor of Brockhill Prison, ex parte Evans (No. 2).116
Consent is a defence to false imprisonment, but the problem lies in determining when the claimant’s consent may be inferred. Sunbolf v. Alford117 held that there can be no private power of arrest for debt or breach of contract, but later cases have appeared to erode the effects of this rule. One such case is Robinson v. Balmain New Ferry Co. Ltd,118 in which the plaintiff paid one penny to enter a wharf in order to board a ferry. He then decided not to wait for the ferry and sought to go back through the turnstile. Above the turnstile on both sides of the barrier was a notice requiring payment of a penny by any person entering or leaving the wharf. The plaintiff refused to pay and was prevented from leaving. The Privy Council held that he had no claim in false imprisonment. Lord Loreburn argued that the plaintiff had contracted to leave the wharf via the ferry and that the defendants were under no obligation to let him leave by any other way. In effect, this was imprisonment for breach of contract; Sunbolf v. Alford was not cited. A better explanation for the outcome may be that Robinson could have escaped his confinement by taking the ferry: (p. 360) assuming that this means of exit was a reasonable one, he was not subject to the requisite degree of confinement.
A second difficult case is Herd v. Weardale Steel, Coal and Coke Co. Ltd.119 The plaintiff, a miner, descended a mine at the usual time but when he got to the pit bottom he declined to carry on working and asked to be returned to the surface in the cage. The defendants refused to let him take an empty cage that was available and he had to wait a further twenty minutes until the end of the shift before he was allowed to return. The House of Lords held that the employer had the defence of consent, but this is extremely dubious as not only was there no express agreement to this effect but the judgment again goes against Sunbolf v. Alford. However, the outcome may be explained by the distinction between acts and omissions: it could be argued that the defendants had simply failed to take steps to release the plaintiff in a situation where there was no affirmative duty upon them to do so.120
(ii) Justification and Necessity
Imprisonment is authorised by statute in circumstances of lawful arrest and the confinement of persons remanded in custody pending the hearing of a criminal charge and of those convicted and sentenced to a term of imprisonment.121 The issue of the extent of the statutory powers of arrest of the police and of private citizens is outside the scope of this book.122 However, a development which is of considerable importance for the law of tort is the growing use of the common law defence of necessity to buttress these statutory powers. In Thames Valley Police v. Hepburn, decided as recently as 2002, Sedley LJ said:
It is a bedrock of our civil liberties that a citizen’s freedom of person and movement is inviolable except where the law unequivocally gives the state power to restrict it. If a person obstructs a police officer in the execution of his or her duty an offence is committed and a power of arrest arises. That, and not an implied power to detain or manhandle people who are doing nothing wrong, is how the law protects officers executing a search warrant from interference.123
However, later cases have cast doubt on this proposition, both with regard to the specific case of police searches, and in the wider context of the intentional torts including false imprisonment. In Connor v. Chief Constable of Merseyside Police124 the police, in the course of executing a search warrant, carried out a raid on the claimants’ property, having had grounds to believe that they would find illegal firearms there; they failed to find any. In order to carry out the search they removed the occupants of the house and placed them in police cars for periods of up to an hour. The judge rejected claims of trespass to the person, false imprisonment and infringement of human rights on various grounds including the availability of a necessity defence. The Court of Appeal upheld this ruling, on the grounds (p. 361) that the police, genuinely believing that firearms were present and that shots might be fired, were entitled to remove the occupants from the house and to detain them while the search continued. Although ‘the burden on the police justifying an interference with civil liberties of the kind we have here is a heavy one’,125 it had been discharged in this case. The Court also found that the police had a defence to the human rights claim under the provisions of Article 5(1)(b) of the Convention, which applies where a person is arrested or detained ‘in order to secure the fulfillment of any obligation prescribed by law’.
The defence of necessity was also invoked in Austin v. Metropolitan Police Commissioner.126 Here, the police, in dealing with an unauthorised political demonstration involving several thousand people in central London, had cordoned off an area around Oxford Circus and detained several hundred people for a period of hours in a confined space, fifty metres in diameter. Conditions were physically uncomfortable. The judge found that the police had acted ‘to prevent serious injury, and possible death, to persons for whom they were responsible, including police officers, members of the crowd and third parties, as well as to protect property’. Under such circumstances, ‘the police can take measures for the protection of everyone, and a likely measure, involving minimum use of force, is to detain the crowd until dispersal can be arranged safely’. This127 view was upheld in the Court of Appeal and in the House of Lords (where the claim proceeded under Article 5 only). Court of Appeal held that the actions of the police had been lawful at common law on the basis that they were necessary to prevent an imminent breach of the peace. While police action had to be ‘necessary and appropriate’, it was possible that, in ‘extreme and exceptional circumstances’, the ‘lawful exercise by third parties of their rights may be curtailed by the police’.128 In the House of Lords, Article 5 was interpreted as allowing ‘measures of crowd control that are undertaken in the interests of the community’ provided that they are proportionate and necessary.129
The European Court of Human Rights has taken a somewhat stricter view of the necessity defence under Article 5 claims. In HL v. United Kingdom the issue, as we have seen, was whether the confinement of the applicant in a mental hospital could be justified under paragraph 1(e) of Article 5. The Court held that the defence was not made out. After considering the scope of the common law defence of necessity, it stated that ‘the relevant national law must meet the standard of “lawfulness” set by the Convention which requires that the law be sufficiently precise to allow the citizen—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail’.130 Although the defence of necessity provided a basis for determining when detention might occur on the grounds of protecting persons of unsound mind from harming themselves and others, there was an absence, in this case, of the procedural safeguards which would have been needed to protect against ‘arbitrary deprivations of liberty’.131 It remains to be seen what impact this strict test will have on the development of the common law defence, but it may well be the case here, as in other contexts, that there is an alignment over time of the common law approach with that prevailing under the Convention.
Statutory authorisation for the imprisonment of persons convicted of offences is found in section 12(1) of the Prison Act 1952;132 the Prison Rules, which are made pursuant to statutory powers, lay down in greater detail the manner in which the prison regime is to be arranged. (p. 362) The tort of false imprisonment would seem to have little role to play in this area following the decision of the House of Lords in two joined cases, R v. Deputy Governor of Parkhurst Prison, ex parte Hague and Weldon v. Home Office.133 In each case prisoners who had been lawfully detained following conviction complained of mistreatment alleged to be contrary to the Prison Rules; in the Hague case this consisted of segregation, in Weldon, of confinement in a ‘strip cell’. In Weldon in the Court of Appeal Ralph Gibson LJ accepted that ‘there is no reason … why the nature of the tort, evolved by the common law for the protection of personal liberty, should be held to be such as to deny its availability to a convicted prisoner, whose residual liberty should, in my judgment, be protected so far as the law can properly achieve unless statute requires otherwise’.134 However, the notion that a convicted prisoner has a ‘residual liberty’ in this sense was rejected by the House of Lords.135 In the view of Lord Bridge:
the concept of the prisoner’s ‘residual liberty’ as a species of freedom of movement within the prison enjoyed as a legal right which the prison authorities cannot lawfully restrain seems to me quite illusory. The prisoner is at all times lawfully restrained within closely defined bounds and if he is kept in a segregated cell, at a time when, if the rules had not been misapplied, he would be in the company of other prisoners in the workshop, at the dinner table or elsewhere, this is not the deprivation of his liberty of movement, which is the essence of the tort of false imprisonment, it is the substitution of one form of restraint for another.136
According to Lord Jauncey, the prisoner
is lawfully committed to a prison and while there is subject to the Prison Act 1952 and the Prison Rules 1964. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty that they had not already lost when initially confined.137
Any action for mistreatment has to be brought instead in negligence (which requires proof of fault) or via a public law remedy; alternatively, the House of Lords accepted that a personal action for false imprisonment would lie against a prison officer who acted in abuse of his powers or against a fellow prisoner. However, Lord Bridge thought that the prison authorities would not be vicariously liable for any such abuse of power by an officer.138
There are several difficult aspects to this decision. The notion that the prisoner has no ‘residual liberty’ within the terms set down by the Prison Rules is disturbing enough, according as it does a narrow and formal meaning to the concept of imprisonment and unduly widening the scope of the lawful-authority defence, which effectively now applies even when the Prison Rules have been breached. It is also the case that few of the arguments put forward for restricting the tort in this context are particularly compelling. It cannot be the case, for example, that the tort of false imprisonment should be narrowed down on the ground, suggested by Lords Bridge and Jauncey, that a contravention of the Prison Rules cannot be construed as giving rise to a private action for breach of the statutory duty. The question of the availability of a private action for breach of the statute is a logically separate matter with no bearing on the scope of the false imprisonment tort. The suggestion that the prison authorities would not be liable for an officer acting in abuse of his powers is a contentious reading of the difficult concept of an employer’s vicarious liability for torts (p. 363) committed by an employee in the ‘course of his employment’.139 Nor is it the case that a prisoner able to show that his confinement had passed the bounds of legality would be able, in the event of there being false imprisonment, to walk out of the prison, as Lord Bridge suggested; it would simply be the case that the additional and unlawful confinement to which he had been subjected would have to be discontinued.
In contrast to the approach taken in Hague and Weldon, long-standing authorities on the tort of false imprisonment suggest that the wrongful continuation of an originally lawful imprisonment is actionable,140 and more recent case law also establishes that a prison governor may be liable for false imprisonment in a case where the prisoner is detained beyond the correct time for his release. In R v. Governor of Brockhill Prison, ex parte Evans (No. 2)141 the claimant was sentenced to several concurrent terms of imprisonment, the longest of which was a sentence of two years for burglary. In calculating the length of her imprisonment, the prison governor took into account the time she had spent in custody on remand in relation to that sentence alone. In proceedings for judicial review, it was established that this was an error; the correct approach was to aggregate the periods spent on remand in relation to all the relevant offences and deduct that from the period of imprisonment. On this basis, the applicant had been detained in excess of just over two months, in respect of which she brought an action of false imprisonment. The House of Lords upheld her claim: although the prison governor had acted in good faith on the basis of earlier case law, he had, objectively speaking, confined the applicant without lawful justification.
The Brockhill case was given a narrow reading in Quinland v. Governor of Swaleside Prison,142 where the mistake in calculating the sentence was made by the judge at the original trial, not by the governors of the prison. The governors escaped liability on the grounds that they were executing a prison warrant that was valid on its face, and the judge was found to have immunity under section 2(5) of the Crown Proceedings Act 1947. The principle that public officials can be liable for the tort of false imprisonment for detentions carried out in excess of statutory or other governmental powers was however reaffirmed by the Supreme Court in R (Lumba) v. Secretary of State for the Home Department.143 Here the majority of the Court (Lords Phillips and Brown dissenting) ruled that the detention of convicted foreign prisoners pending their deportation amounted to false imprisonment where the Home Office had been operating an unpublished policy of blanket detentions, in contravention of the published rules which required the circumstances of particular cases to be taken into account. According to the majority, the public law breach resulting from the Home Office’s actions meant that there had been no lawful authority supporting the detentions. The dissenting judgments took the opposite view on the significance of the public law breach. All judgments, however, affirmed the nature of false imprisonment as a tort that was actionable per se, without proof of damage, whose purpose was to protect the liberty of the individual. It was irrelevant, as here, that the claimant could have been confined lawfully had the correct procedure been followed, and almost certainly would have been so: as Lord Dyson put it, ‘all that a claimant has to prove in order to establish false imprisonment is that he is directly and intentionally imprisoned by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so’.144
(p. 364) 5. Residuary Trespass and Harassment: The Tort in Wilkinson v. Downton and the Protection From Harassment Act 1997
The boundaries of liability under the tort in Wilkinson v. Downton145 are notoriously unclear. Broadly speaking, this cause of action can be said to cover the intentional and indirect infliction of physical injury or psychiatric harm upon another. In the case itself a practical joker falsely told the plaintiff that her husband had broken both his legs in an accident. She suffered nervous shock and fell ill. The court allowed her claim for damages. She could not sue in trespass because the damage to her was inflicted indirectly through words, and at that time the courts were not prepared to award damages for nervous shock as such. Wright J nevertheless held the defendant liable on the basis that he had ‘wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act.’146
Wilkinson v. Downton has only been followed twice in England. In Janvier v. Sweeney147 the defendants, private detectives, were held liable to the plaintiff for threatening, without any justification, to denounce her fiancé, a German internee, to the authorities as a spy, causing her to fall ill. The defendants had clearly acted without justification, in the sense of threatening her in order to obtain private letters belonging to her mistress. This decision suggests that the tort is not confined to situations in which false or misleading statements are made.
In the second English authority, Khorasandjian v. Bush,148 the defendant repeatedly made unwanted and harassing telephone calls to the plaintiff, placing her under considerable stress, but not inflicting any physical injury as such. The Court of Appeal, upholding the judgment of Judge Stockdale QC, decided that it was appropriate to grant an injunction against the defendant under the rule in Wilkinson v. Downton.149 According to Dillon LJ, although there was no evidence of the plaintiff having suffered any physical or psychiatric condition, ‘there is … an obvious risk that the cumulative effect of continued and unrestrained further harassment such as she has undergone would cause such an illness’;150 on this basis, a quia timet injunction could be issued. It is important that the defendant was taken to have intended the plaintiff to have suffered the harm in question; had he merely been negligent, he presumably could not have been held liable under Wilkinson v. Downton. The question of his possible liability in the tort of negligence was not considered by the court.151
Wilkinson v. Downton was approved in Australia in Bunyan v. Jordan,152 although it was distinguished on the facts, since the words in question were not uttered in the defendant’s presence. According to Latham CJ, ‘none of the cases has gone so far as to suggest that a man (p. 365) owes a duty to a person who merely happens to overhear statements that are not addressed to them’. Where the defendant knows, however, that it is almost certain that the plaintiff will overhear a statement addressed to a third party, and intends her to be harmed as a consequence of doing so, there would seem to be no reason why he should not be held liable.153
The widest rule that can be gleaned from Wilkinson v. Downton is that of a general principle of residuary liability outside the nominate torts of intentional interference. It is unlikely that it could be used as a basis for creating a generalised tort of intentional interference of a physical or economic kind. Despite some wide dicta in Rookes v. Barnard,154 the courts have preserved the separate heads of liability in this area.155 In Wainwright v. Home Office156 the House of Lords distinguished Wilkinson v. Downton almost to vanishing point. The claimants in Wainwright, a mother and son, were subjected to a strip search when they visited a relative in prison, on the grounds that they might be bringing drugs into the prison. The search, as such, was authorised by the Prison Rules, but the prison officers deviated from the established procedure in a number of ways, not least by subjecting the son to a battery. That part of his claim succeeded. In addition, both claimants argued that they had a cause of action for trespass to the person for the distressing and humiliating manner in which the search had been carried out. This claim failed. According to Lord Hoffmann, the tort in Wilkinson v. Downton ‘has nothing to do with trespass to the person’,157 and as such required actual damage in the form of physical harm or recognised psychiatric illness. Moreover, an intention to harm the claimant had to be shown. For this purpose, an imputed intention was insufficient: ‘the defendant must actually have acted in a way which he knew to be unjustifiable and either intended to cause harm or at least acted without caring whether he caused harm or not’.158 Since the prison officers had neither intended to cause distress ‘or realized that they were acting without justification in asking the Wainwrights to strip’159 they could not be liable. Even if an intention had been established, Lord Hoffmann doubted that a cause of action lay for intentionally causing distress as opposed to a recognised psychiatric illness.160
A narrow reading of Wilkinson v. Downton was also the basis for the decision of the Supreme Court in Rhodes v. OPO.161 The Court discharged an injunction granted by the Court of Appeal to prevent publication of an autobiography in which the author described abuse he had suffered as a child. The basis for the injunction was the psychiatric harm that the book would foreseeably cause to the author’s son. A claim in negligence was rejected on the grounds that there was no duty of care,162 but the Court of Appeal held that an injunction could be granted on the basis of the tort in Wilkinson v. Downton. Reversing this decision, the Supreme Court ruled that the relevant mental element, intention to harm, was lacking. According to Baroness Hale and Lord Toulson, there had to be an intention to cause ‘at least severe mental or emotional distress’163 leading to a recognised psychiatric illness. Recklessness, understood as acting with the subjective knowledge that the relevant harm was likely to result from the claimant’s conduct, did not suffice to establish this tort.164 The Supreme Court also ruled that the publication of the book was protected in this case (p. 366) by the defence of justification, referring to the need to give the ‘freedom to report the truth’ a ‘very high level of protection’.165
The limitations of Wilkinson v. Downton have to some extent been overcome by statutory intervention. Thus the law in relation to vexations and disturbing behaviour was significantly strengthened by the Protection from Harassment Act 1997. This Act makes it a tort (as well as a crime) for a person to pursue a course of conduct amounting to harassment of another, and which he knows or ought to know amounts to harassment of another.166 For this purpose, ‘the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of another’.167 It is a defence, among other things, for the defendant to show that ‘in the particular circumstances the pursuit of the course of action was reasonable’.168 A ‘course of conduct’ involves ‘conduct on at least two occasions’ and ‘conduct’ includes ‘speech’.169 The victim has the right to seek damages for ‘(among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment’.170 The claimant does not have to be the intended target of the defendant’s conduct; it can also be a third party who was foreseeably harmed by it, such as a close family member.171 In addition, in the case of either an actual or an apprehended breach of this part of the Act, a court can grant an injunction to restrain the defendant from harassing the claimant.172 If the terms of the injunction are broken, the claimant may seek a warrant for the arrest of the defendant.173 If the defendant has committed a crime under either section 2 (harassment) or section 4 (the separate offence of ‘putting people in fear of violence’), it can issue a restraining order prohibiting the defendant from ‘doing anything described in the order’.174
The critical difference made by the Act is that a claim can be made for ‘anxiety’ falling short of a recognised category of psychiatric harm such as post-traumatic stress disorder. However, the claim will only lie if there is a course of conduct amounting to harassment. As Lord Hoffmann put it in Wainwright, ‘the requirement of a course of conduct shows that Parliament was conscious that it might not be in the public interest to allow the law to be set in motion for one boorish incident’; he went on, ‘it may be that the development of the common law should show similar caution’.175 The practical effect of the judicial self-restraint shown in Wainwright is to increase the importance of the Act as a source of protection. Successful claims have been brought in relation to, among other things, a campaign of harassment waged by animal-rights activists against employees of a company carrying out medical research (although the company itself had no cause of action);176 intrusive police questioning, over a period of months, of the mother of a child who had allegedly been assaulted by the claimant’s partner;177letters sent by a housing association, over a period of eight months, threatening injunction and possession proceedings without (p. 367) proper foundation;178 and the posting of material on a website entitled ‘Solicitors from Hell’ which invited members of the public to ‘name and shame’ law firms against which they had a grudge.179 The practical value of the tort has also been enhanced by the ruling of the House of Lords in Majrowski v. Guy’s and St. Thomas’s NHS Trust,180 to the effect that an employer may be vicariously liable for a breach of the Act committed by an employee in the course of their employment.
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1  2 QB 57.
2 E.g. Wilson v. Pringle  QB 237, 249: ‘it is the act and not the injury that must be intentional. An intention to injure is not essential to an action for trespass to the person. It is the mere trespass itself which is the offence’ (Croom-Johnson LJ). This statement is ambiguous in that it refers to ‘injury’ rather than ‘interference’. It is clear that intention to injure is not necessary since injury itself is not necessary, trespass being actionable per se. ‘Interference’ in the sense of unlawful contact is the gist of the tort of battery, with or without damage, and it seems in the light of other authorities (cited in the text) that the defendant must have intended the interference, in this sense.
3 See P. H. Winfield, ‘The Myth of Absolute Liability’ (1926) 42 LQR 37; A. L. Goodhart and P. H. Winfield, ‘Trespass and Negligence’ (1933) 49 LQR 37; H. J. Prichard, ‘The Rule in Williams v. Holland’  CLJ 234, 237.
4 See Fletcher v. Rylands (1866) LR 1 Ex. 1 265, 268 (Blackburn J); River Wear Commissioners v. Adamson (1977) 2 App. Cas. 743 (Lord Blackburn); Holmes v. Mather (1875) LR 10 Ex. 261 (Bramwell LJ); see generally J. G. Fleming, Torts (7th edn., 1992), 18 ff.
5  AC 562.
6  1 QB 426, following Stanley v. Powell  1 QB 86.
7  1 QB 232, 240, applied by the Court of Appeal in Wilson v. Pringle  QB 237.
8 Letang v. Cooper was argued in the tort of battery in order to take advantage of the longer limitation period of six years, as opposed to three years for negligence, in force at that time. On the present law of limitation, see ch. 24, sec. 9 below.
9  1 AC 844.
10 See our analysis in ch. 24, sec. 9.
11 See Weir, Casebook on Tort (10th edn., 2004), at 322–3; Steele, Tort Law: Text, Cases and Materials (4th edn., 2017), at 38–39.
12 See P. Cane, The Anatomy of Tort Law (1997), in particular chs. 2 and 3; U. Burnham, ‘Negligent False Imprisonment: Scope for Re-emergence’ (1998) 61 MLR 573.
13  1 AC 962. See also Bici v. Ministry of Defence  EWHC 786, in which claims for both negligence and trespass succeeded in the context of an unlawful shooting, and Balhaj v. Straw  EWCA Civ. 1394, in which it was held that a claim arising from the alleged complicity of the UK government in torture by overseas governments was not barred by the defences of state immunity and act of state.
14  UKSC 12.
15 See the judgment of Lord Collins of Mapesbury,  UKSC 12 . Note, however, Patel v. Home Secretary  EWHC 501 (Admin), in which it was suggested that exemplary and aggravated damages may be awarded in suitably serious cases of maladministration.
16 R v. Beasley (1981) 73 Cr. App. R 44.
17 Jones v. Sherwood  1 KB 127.
18 Mbasogo v. Logo Ltd (No. 1)  EWHC 2034.
19 R v. Norden (1755) Fost. 129.
20 See R v. Venna  QB 421; Bici v. Ministry of Defence  EWHC 786.
21 R v. St George (1840) 9 C & P 483, 493.
22 Mortin v. Shoppee (1828) 3 C & P 373.
23 Stephens v. Myers (1830) 4 C & P 349.
24 Mead’s v. Belt’s Case (1823) 1 Lew. CC 184; 168 ER 1006.
25  1 Mod. Rep. 3; 86 ER 684.
26 (1853) 13 CB 850.
27 Innes v. Wylie  1 C & K 257.
28 But the defendant need not necessarily have intended to make contact with the claimant as opposed to another in the vicinity of the claimant: Bici v. Ministry of Defence  EWHC 786.
29 Cole v. Turner (1704) 6 Mod. Rep. 149; 87 ER 907.
30  2 Lev. 133; 83 ER 485.
31  QB 237.
32  2 AC 1.
33  1 WLR 1172, 1177.
34 R v. Chief Constable of Devon and Cornwall, ex parte Central Electricity Generating Board  QB 458, 471 (Lord Denning MR, citing R. F. V. Henston and R. A. Buckley, Salmond and Henston’s Law of Torts (19th edn., 1987), 133); KD v. Chief Constable of Hampshire  EWHC 2550 (unwelcome cuddling).
35  2 AC 406, 417.
36 (1670) 1 Mod. Rep. 24; 86 ER 703.
37 Section 18.
38  1 QB 439; see also R v. Miller  2 AC 161.
39 See Offences Against the Person Act 1861, ss. 42–5; Ellis v. Burton  1 WLR 386.
40 As in Halford v. Brookes  1 WLR 428.
41  1 All ER 821, 881.
42 Bolam v. Friern Hospital  1 WLR 582; ch. 3, above.
43  AC 871.
44 Chatterton v. Gerson  QB 432 (Bristow J).
45  QB 432, 443.
46  QB 432, 443.
47 See Hills v. Potter  1 WLR 641; Sidaway v. Bethlem Royal Hospital  AC 871; Freeman v. Home Office (No. 2)  QB 524; F v. R (1984) 33 SASR 189; Chappel v. Hart (1998) 195 CLR 232; Chester v. Ashfar  QB 356.
48  1 QB 524, 537–9 (McCowan J), 557 (Sir John Donaldson MR). For discussion on when failure on the part of the surgeon to disclose risks amounts to negligence, see Montgomery v. Lanarkshire Health Board  UKSC 1, discussed in ch. 4, above.
49 For this crime, see Suicide Act 1961, s. 2(1); Pretty v. DPP  1 AC 800.
50 Airedale NHS Trust v. Bland  AC 789, 866 (Lord Goff of Chieveley), approving the Canadian decision in Nancy B v. Hôtel-Dieu de Québec (1992) 86 DLR (4th) 385; Re AK (Medical Treatment: Consent)  FLR 129; Re B (Adult: Refusal of Medical Treatment)  2 All ER 449.
51 As in the case of a Jehovah’s Witness: Re T (Adult: Refusal of Medical Treatment)  Fam. 95.
52  AC 112.
53 (1981) 80 LGR 301.
54  AC 199.
55 Re W (A Minor) (Wardship: Medical Treatment)  4 All ER 177; Re W (A Minor) (Wardship, Medical Treatment)  4 All ER 627.
56 See Re B (A Minor) (Wardship; Sterilisation)  AC 199; Re C (A Minor) (Wardship, Medical Treatment)  Fam. 26; Re J (A Minor) (Wardship, Medical Treatment)  Fam. 33;Airedale NHS Trust v. Bland  AC 789, 808–9 (Sir Thomas Bingham MR).
57  Fam. 147.
58 On this see also the judgment of Lord Goff of Chieveley in R v. Bournewood Community and Mental Health NHS Trust, ex parte L  AC 458.
59 The parens patriae jurisdiction formerly exercised by the courts in the case of adults, such as mental patients, unable effectively to express their will or consent to medical treatment, has been repealed by statute: see Re F  2 AC 1; Airedale NHS Trust v. Bland  AC 789, 857 (Lord Keith of Kinkel).
60  2 AC 1, 76.
61 Airedale NHS Trust v. Bland  AC 789, 857 (Lord Keith of Kinkel).
62 Principally in the form of the Mental Capacity Act 2005.
63  2 AC 1, 55.
64 See Simms v. Simms  EWHC 2734 (Fam) (in which the court authorised the treatment of patients suffering from vCJD using new, untested drugs).
65  2 FLR 787.
66  3 All ER 673.
67 Southport Corp. v. Esso Petroleum Co.  2 QB 182 (Devlin J).
68 (1909) 26 TLR 169.
69 See Secretary of State for the Home Department v. Robb  Fam. 127.
70 The question of police powers under the Police and Criminal Evidence Act 1984 and related legislation lies outside the scope of this book.
71  AC 789. There have since been many applications of this ruling. The authorities were recently reviewed by the Court of Appeal in Portsmouth NHS Trust v. Wyatt  EWCA Civ. 1181.
72  AC 789, 825 (Sir Stephen Brown P).
73 Lords Keith and Lowry expressed their broad concurrence with the reasoning adopted by Lord Goff.
74  1 All ER 821, 892.
75  1 All ER 821, 895.
76  2 FLR 367.
77  1 AC 800.
78 Pretty v. United Kingdom  2 FLR 45.
79  2 AC 1, 70, citing, respectively, R v. Coney (1882) 8 QBD 534; Attorney-General’s Reference (No. 6 of 1980)  QB 715; and R v. Donovan  2 KB 498; and see also R v. Brown  1 AC 212, Laskey, Jaggard and Brown v. United Kingdom (1997) 24 EHRR 39.
80  1 All ER 821, 889. See also the judgment of Lord Hobhouse in Pretty v. DPP  1 AC 800.
81  1 QB 379.
82 The Case of Thorns (1466) YB 6 Ed. fo. 7 pl. 18, Lambert v. Bessey (1681) T. Ray 421.
83  1 AC 962.
84  1 QB 379.
85  QB 94.
86 See the judgments of Lord Hoffmann and Lord Rodger in Standard Chartered Bank v. Pakistan National Shipping Corp.  1 AC 959, a case concerning liability in the tort of deceit.
87 If damage occurs it is in principle recoverable, but the loss must flow from the confinement as such. See Hicks v. Young  EWHC 1144 (QBD) for a decision illustrating the practical effects of the different approaches to causation in the torts of false imprisonment and negligence.
88 Section v ‘Imprisonment’.
89 Hart v. Chief Constable of Kent  RTR 484.
90 Walker v. Commissioner of Police of the Metropolis  EWCA Civ. 897, not following, on this point, Collins v Wilcock  1 WLR 1172. ‘False’ imprisonment need not involve any deceit or mendacity: R (Jollah) v. Home Secretary  EWCA Civ. 1260  (Davies LJ).
91 (1845) 7 QB 742.
92  EWHC 480,  EWCA Civ. 989.
93  AC 458.
94 (2005) 40 EHRR 32.
95 HL v. United Kingdom, Judgment of 5 October 2004, at 29.
96  EWCA Civ. 989,  1 AC 564. See also Connor v. Chief Constable of Merseyside Police  EWCA Civ. 1549.
97 For discussion of this decision see D. Feldman, ‘Containment, Deprivation of Liberty and Breach of the Peace’  CLJ 243; Steele, Tort Law: Text, Cases and Materials, at 74–5. Austin was applied in R. (Hicks) v. Commissioner of Police of the Metropolis  UKSC 9 to find that an arrest for breach of the peace was lawful where the police reasonably believe that violence is imminent.
98 Austin v. United Kingdom (2012) 55 EHRR 14.
99 Zenati v. Commissioner of Police of the Metropolis  EWCA Civ. 80. See also: R (Jollah) v Home Secretary  EWCA Civ. 1260,  6 WLUK 186, where the court discussed the differences between the requirements for false imprisonment and for claims under Article 5.
100 (1834) 1 CM & R 377; 149 ER 1126.
101 (1919) 122 LT 44.
102  1 WLR 692.
103  QB 733.
104 There was no claim against the governor for the reasons set out in the earlier House of Lords decisions in R v. Deputy Governor of Parkhurst Prison, ex parte Hague and Weldon v. Home Office  1 AC 58, discussed below, sec. (B)(ii).
105 R v. Governor of Brockhill Prison, ex parte Evans (No. 2)  2 AC 19; Iqbal v. Prison Officers’ Association  1 QB 753  (Smith LJ).
106 See Austin v. Dowling (1870) LR 5 CP 543, 540.
107 Hopkins v. Crowe (1836) 4 A & E 774; 111 ER 974.
108 Brown v. Chapman (1848) 6 CB 365; 136 ER 1292.
109 See below, ch. 10; Lock v. Ashton (1842) 12 QB 871; 116 ER 1097, Lea v. Carrington (1889) 23 QBD 45.
110 Iqbal v. Prison Officers Association  1 QB 733 – (Lord Neuberger of Abbotsbury MR).
111  2 All ER 597.
112  2 All ER 597, 602.
113 Fowler v. Lanning  1 QB 426, Letang v. Cooper  1 QB 232; see our discussion, above, sec. 1.
114  QB 753.
115  QB 753 .
116  2 AC 19.
117 (1838) 3 M & W 248; 150 ER 1135.
118  AC 295.
119  AC 67.
120 On this interpretation of Herd, see Iqbal v. Prison Officers Association  QB 733.
121 Note also the use of the defence of witness immunity in Crawford v. Jenkins  1 All ER 476. Contributory negligence was rejected as a defence to false imprisonment in Hicks v. Young  EWHC 1144 (QBD).
122 The reader is referred to specialist texts on constitutional law and the law of civil liberties. The principal legislation in this area is the Police and Criminal Evidence Act 1984; other legislation, such as the Theft Act 1978, s. 3(4), is also relevant, as is the common law power to arrest for a breach of the peace. On the information which must be given to a person upon his arrest or as soon as practicable thereafter, see Christie v. Leachinsky  AC 573, John Lewis & Co. v. Tims  AC 676, and the Police and Criminal Evidence Act 1984, s. 28. The fact that an arrested person later pleads guilty to a charge is not conclusive evidence that his initial confinement by the police was lawful, according to the Court of Appeal in Hill v. Chief Constable of South Yorkshire  1 All ER 1046.
123  EWCA Civ. 1841.
124  EWCA Civ. 1549.
125  EWCA Civ. 1549  (Waller LJ).
126  EWHC 480,  EWCA Civ. 989,  1 AC 564.
127  EWHC 480  (Tugendhat J).
128  EWCA Civ. 989  (Sir Anthony Clarke MR).
129  1 AC 564 (Lord Hope of Craighead).
130 Application No. 45508/99, Judgment of 5 October 2004, at .
131 HL, Judgment of 5 October 2004, at .
132 ‘A prisoner, whether sentenced to imprisonment or committed to prison on remand or pending trial or otherwise, may be lawfully confined in any prison.’
133  1 AC 58.
134  1 AC 58, 139.
135 The House of Lords thereby repudiated dicta to the contrary of Ackner LJ in Middleweek v. Chief Constable of Merseyside (1985)  1 AC 179, 186 (Note).
136  1 AC 58, 163.
137  1 AC 58, 176.
138  1 AC 58, 164.
139 See our discussion in ch. 19, below. Since Hague and Weldon were decided, the scope of the employer’s liability for intentional torts has been considerably clarified by the decisions in Lister v. Hesley Hall Ltd  2 AC 215 and Majrowski v. Guy’s and St. Thomas’s NHS Trust  3 WLR 125.
140 Withers v. Henley (1614) Cro. Jac. 379; 79 ER 324, Mee v. Cruikshank (1902) 86 LT 708, although cf. Olutu v. Home Office  1 All ER 385, 391–2.
141  2 AC 19.
142  QB 306.
143  2 WLR 671. The same principle has long been applied in cases of police powers: see Christie v. Leachinsky  AC 573.
144  2 WLR 671 .
145  2 QB 57.
146  2 QB 57.
147  2 KB 316.
148  QB 727. It should also be noted that an employer will owe a personal duty of care to his employees to avoid circumstances under which they are exposed to sexual, racial, or other forms of harassment in the workplace or in work-related environments, as well as, under certain circumstances, being vicariously liable for torts of harassment committed by employees against their fellow employees: see Waters v. Metropolitan Police Commissioner  1 WLR 1607; J. Conaghan, ‘Law, Harm and Redress: A Feminist Perspective’ (2002) 22 Leg. Stud. 319.
149 The Court of Appeal also held that an injunction could lie on the basis of a cause of action in private nuisance, but this is no longer good law following the decision of the House of Lords in Hunter v. Canary Wharf  AC 655.
150  QB 727, 736.
151 On liability in negligence for physical harm resulting from statements (both true and false), see ch. 3, above.
152 (1937) 57 CLR 1.
153 As in the Canadian case of Bielitski v. Obadiak (1922) 65 DLR 627.
154  AC 1129.
155 Lonrho v. Shell Petroleum Co. Ltd  AC 173.
156  2 AC 406, noted by A. Johnston, ‘Putting the Cart Before the Horse? Privacy and the Wainwrights’  CLJ 15.
157  2 AC 406, 426.
158  2 AC 406, 426.
159  2 AC 406, 426.
160 To similar effect is the Supreme Court decision in Rhodes v. OPO  AC 219 discussed below, in this section.
161  AC 219.
162 On this point, see our analysis in ch. 3, sec. 3(B)(iv), above.
163  AC 219 .
164  AC 219 .
165  AC 219 .
166 Protection from Harassment Act 1997, s. 1(1), (2).
167 Protection from Harassment Act 1997, s. 1(2).
168 Protection from Harassment Act 1997, s. 1(3)(c). Note also the defence under s. 1(3)(a) relating to course of conduct pursued for the purpose of preventing or detecting crime, discussed in Hayes v. Willoughby  UKSC 17.
169 Protection from Harassment Act 1997, s. 7.
170 Protection from Harassment Act 1997, s. 3(2).
171 Levi v. Bates  EWCA Civ. 206, where the claimant was the intended victim’s wife.
172 Protection from Harassment Act 1997, s. 3(3).
173 Protection from Harassment Act 1997, s. 3(4)–(5). Breach of the injunction is also an offence: s. 3(6)–(9).
174 Protection from Harassment Act 1997, s. 5.
175  2 AC 406, 426. See also the judgment of Hale LJ in Wong v. Parkside Health NHS Trust  EWCA Civ. 1721.
176 Daiichi v. Stop Huntingdon Animal Cruelty  1 WLR 1503.
177 KD v. Chief Constable of Hampshire  EWHC 2550.
178 Worthington v Metropolitan Housing Trust Ltd  EWCA Civ. 1125,  5 WLUK 337
179 Law Society v. Kordowski  EWHC 3815.
180  UKHL 344; see further ch. 19, below.