Kidnapping & Abduction

Cases

 

Burns v Johnston

Court of Appeal.

5 December 1916

[1916] 50 I.L.T.R 224
Sir Ignatius J. O’Brien L.C., Ronan, Molony L.JJ.

Dec. 4, 5, 1916

This case, as presented by counsel for the appellant, who showed a considerable amount of ingenuity in the way they put their argument before the Court, might have had a different result if the facts were differently found, but on the facts, as found by the learned judge who stated the case, and on the inferences of fact which the Court below were, by consent of the parties, at liberty to draw, I am of opinion that the plaintiff must fail in this action. I confess that at first sight the proposition that any employer could turn a key in a lock for the purpose of preventing workers leaving a yard, or could refuse to unlock a gate so as to prevent them leaving their employer’s premises, and that they could not have an action for false imprisonment, seemed to me to be rather startling. But, at the same time, when the reasons given by the House of Lords in the case of Herd v. Weardale Steel, Coal and Coke Co. are properly understood, the legal difficulty entirely vanishes, and whether or not the views of the House of Lords may or may not meet with the approval of those who are not lawyers, I am bound to give full effect to that decision in this Court. That case is remarkable not only by reason of the legal questions definitely decided, but the history of the case in its facts, and in connection with the Court below, is extremely interesting. It appears from the judgment of Mr. Justice Pickford, before whom the case originally came, that some two or three workmen, having conceived that it would be dangerous to their lives or limbs to entered certain shaft to do certain work, refused to do so, and demanded that they should be raised to the surface in the cage used for the conveyance of workmen and coal from the mine to the surface, and vice versâ. With regard to some of the workers in that case, the act was a negative act. The workers got into the cage, and orders having been given not to lift the cage the workers were imprisoned for a short time. In the case which actually came on for trial, the man had been refused admission to the lift. In the ultimate issue, as determined by the House of Lords, it appears to be immaterial whether the act was positive or negative. The question is, for or against the workman, was it a deliberate act or omission by the employer, the effect of which is to prevent the worker having a free right of moving from where he is on his employer’s property to a place which is not his employer’s property? The view taken by Pickford, J., and Vaughan Williams, L.J., represents on view of the case, and if it had rested solely on the judgments of Vaughan Williams, L.J., Buckley, L.J., and Hamilton, L.J., an arguable case on the lines presented by counsel for the appellant might be made. But, to my mind, the decision of the House of Lords is such that there can be no doubt on the present issue. The Case finds that, acting on powers which were lawfully given by the Home Secretary, the employers got liberty in the case of certain workers—no liberty being necessary in the case of others—to keep them employed until 6 30 p.m.; that notice of the defendant’s intention to make the change was duly given, and that the plaintiff had due notice of the change by a notice posted in the factory a fortnight before the day of the occurrence. It was strongly pressed on us that this additional half-hour was in the nature of working half an hour’s overtime, and that the regular work areally terminated at 6 p.m. It does not appear to me that any workman drew that distinction. The notice was a notice requiring the employees to work from 6 a.m. to 6 30 p.m. And accordingly when they came to work that morning they entered the factory knowing that it would be open for work until 6 30 p.m. It is not possible as a matter of law to say what was in their minds, but the notice was perfectly clear. They were free to come or not to come, but once they entered the factory—once they entered a place which was not theirs, and which they had no right to enter except in pursuance of some contract—it appears to me the conclusion is irresistible that there was, in the words of Gibson, J., “a tacit contract (whether the plaintiff in his own mind intended it or not) that the hours were to be extended to 6 30 p.m.” It may be possible that on a fuller statement of the facts a different conclusion might be come to, but I conceive I am not at liberty to draw any inferences of fact beyond those in the case stated by Mr. Justice Pim and those drawn by the Court below with the permission of the parties—no such permission having been given to us. However that may be, the conclusion forced on me by Herd’s Case is that where the detention is based on the lawful exercise of the powers which are conferred on the defendant by the contract, and there is no excess or anything of that kind, that the peculiar action of false imprisonment does not lie. It does not follow that there may not be other circumstances in which an action would lie— e.g., violence causing damage is a totally different thing; deliberately abstaining from doing acts necessary to save the life of a person who might possibly, from restricted powers of locomotion, or otherwise, be unable to act for himself, might also give good grounds for a proper proceeding. But so far as this particular action is concerned, it appears to me to be absolutely clear from the decision of the House of Lords that the action of false imprisonment does not lie. Having regard to the view I take of the judgment of the House of Lords in Herd’s Case, and to the findings of fact in this case, I have come to the conclusion that the learned judges in the Court below were absolutely right, and their order cannot be disturbed.

Ronan, L.J.

An employer erects and maintains machinery in a factory at considerable expense. It is a perfectly reasonable thing for him to see that portion of that expense is not wasted. In order to get a full return, he determines that he will not have men there who will not work the full working hours. That is very rational and reasonable. An employer may say I will not have men dropping in and out of my premises to public-houses to get betting tips, or for some other purpose, and accordingly the terms of my employment are, that the men employed by me must work the full time, and if they want to leave the premises they must apply to the tenter or foreman for a pass, which is to be given to the gatekeeper before leaving. That, also, is perfectly reasonable. Mr. Chambers and Mr. Maguire both admit that if the plaintiff sought to leave before 6 p.m. there would be no question in the case. It narrows itself, therefore, to the half-hour between 6 p.m. and 6 30 p.m. Mr. Justice Pim finds as a fact that due notice was given, and that the hours of employment on that day were between 6 a.m. and 6 30 p.m. He also found that if a worker had to leave the factory during the working hours, he or she had to obtain from the tenter or foreman a pass, which had to be given to the gatekeeper before leaving. Without such a pass a worker could not leave the factory during working hours. On the matter of the pass, I entirely agree with the observations of Mr. Justice Gibson in the Court below. What is the case then? When the man entered those premises on that morning, he did so as a trespasser, or under a contract. By coming in, he accepted the terms of the employment on that day, including the term 6 30 p.m. as much as he accepted the terms, including the term 6 p.m. on the previous day. Under those circumstances, the question is very simple. Was he (the employer) entitled to do an act—viz., to take steps to prevent the plaintiff leaving the premises—when the latter contracted for 6 30 p.m.? Apart from Herd’s Case, I think the principle of law is perfectly plain, and the difference between this case and Herd’s Case is simply this: In Herd’s Case the plaintiff was detained in a dangerous place; and, in this case there is no suggestion in the finding of the County Court Judge that the motive of the defendant was vindictive. I must decline to draw any inferences of fact. It would be beyond my jurisdiction. Lastly, it has been suggested that circumstances of special urgency, safety of life or other matters, might make a difference. In the present case no such case has been made.

Molony, L.J.

This case seems to me to be indistinguishable from Herd’s Case, and I think I cannot usefully add anything to what has been said by my colleagues. The case has been admirably dealt with by Mr. Justice Gibson in the Court below, and I agree with every word of his judgment.

Dowman v Ireland

 

Christopher Dowman (An Infant, suing by his Mother and Next Friend, Mary Dowman) v Ireland, The Attorney General and Sean O’Neill
1983 No. 10267

High Court

29 July 1985

[1986] I.L.R.M. 111
(Barron J)

BARRON J

delivered his judgment on 29 July 1985 saying: The plaintiff is now aged seventeen. Four years ago, he was caught by the assistant manager of a supermarket in the act of stealing a four stone bag of potatoes. He had been sent to buy these by his mother, but had been given something less than their price. He was accompanied by his sister and a cousin, two little girls aged three and four respectively. When caught he and the two young girls were brought to the back of the shop as was a child’s fold-up go-cart which the plaintiff had been pushing and in which the potatoes had been placed. The Gardai were sent for by the manager. These proceedings claim damages for an injury received by the plaintiff while being brought to the Garda Station.

In answer to the manager’s call two guards arrived in a patrol car. Having parked the car outside the shop they came to the back of the shop where the manager was waiting with the three children. The third-named defendant (the Garda defendant) took charge of the matter. Having been told what had happened, he asked the plaintiff for his name and address and the names of his parents. He decided to charge the plaintiff with the larceny of the potatoes and formally arrested him. Meanwhile the driver of the patrol car sought to calm the two small children who were crying and clearly distressed.

The defendant Garda having decided to bring the plaintiff to the Garda Station, the entire party walked through the shop and out to the patrol car. There is a conflict of evidence as to how the plaintiff was brought out. He says that he was marched out of the shop between the two guards, that he pushed the go-cart with his left hand and that the defendant Garda held his right hand twisted behind his back. He says that the manager and the two young children followed them. He complained that as he walked out he was forced to lean forward and that on two or three occasions he complained that his hand was being hurt. The manager is totally vague as to the manner in which they all left his shop and has no real recollection save that of unnecessary roughness on the part of the guard. Both guards say that the defendant Garda pushed the go-cart and held the plaintiff’s right wrist in his left hand and that his colleague followed shepherding the two young children, one on either side of him, and finally the manager brought up the rear. An independent witness, Mr Rocca, who was not called in the Circuit Court saw the two guards and the three children on the pavement outside the shop before they got into the patrol car. He supports the two guards as to how the plaintiff was being held and as to who was pushing the go-cart. He apparently remembered the incident when it was recalled to him after three years. In his own words when introduced to the defendant Garda by a mutual friend he recognised him as the guard involved in a bit of ‘aggro’ on the occasion.

When the car was reached there is again a conflict of evidence as to what occurred. The plaintiff says that the defendant Garda told the two young children to go home and that he, the plaintiff, said that he was not getting in the car unless the two children did also and that he turned around as he said this. At that stage he says the defendant Garda was holding him with both hands and that he heard a click in his wrist. Both guards say that as the plaintiff was getting into the car he suddenly jerked his arm once to try to break free but failed to do so and that it was only after that incident that there was any insistence that the children should go in the car with them and this was not accompanied by any struggle. The plaintiff also said that the defendant Garda pushed one of the children when he told them to go home. Neither guard was cross-examined as to this aspect of the incident nor as to any remark made to the children that they should go home.

In any event the children were brought home by the squad car. While there the plaintiff’s mother became annoyed with her son, came out to the car, took the money she had given him from him and struck him. There is a conflict of evidence as to whether she did so more than once, whether he put his hands up to protect himself and whether she got into the car or did what she did through the open window. The plaintiff and his mother both say that she bent in through the open window of the car and struck him once and that he did not put up his hand to protect himself. The two guards say that she got into the car, struck him several times until told by them to stop and that he put his hands over his ears to protect himself.

The plaintiff was then brought to the Garda Station where he was kept for about an hour and a half and then released when his older brother arrived. He was not charged but was dealt with under the Juvenile Liaison Scheme. When outside he told his brother that his wrist had been hurt. His brother brought him back and a formal complaint was made. No evidence as to the actual injury alleged was adduced, but equally it was not suggested that such a complaint had not been made.

When he returned home, the plaintiff’s wrist was still paining him and he was brought to see the family doctor. The latter sent him to Jervis Street Hospital where he was treated in the out-patients department. Mr De Vella the head of this department gave evidence, to which there was no objection, both from the case notes and his own examination some months later in August 1981. The plaintiff was unable to use his right wrist which was tender, swollen, stiff and bruised and causing him some pain. The tenderness was on the side of the wrist behind the thumb. Both flexion and extension of the joint was limited. X-ray of the wrist suggested to Mr De Vella that there was a fracture of the bone, though the opinion of the consultant radiologist was that there was no such fracture. X-ray of the hand was negative.

Plaster of paris was applied in the hospital. This was removed on 8 May 1981 and replaced by strapping which was kept on for about two weeks. Mr De Vella himself did not see the plaintiff until 31 August 1981 at which time he said that he had been off school for a week and had given up hurling for about six weeks. At that date he had some tenderness at the side of his wrist behind his little finger. His movements were full, he could make a full fist and he had a strong grip. No marks were visible on the wrist. When seen in March 1984 the plaintiff complained of some discomfort when lifting heavy objects with his right hand or when two hurley sticks clashed. A further X-ray gave no assistance as to whether or not there had been a fracture.

Mr De Vella’s opinion was that the plaintiff either suffered a sprain of his wrist or a fracture which in context was a minor injury of no consequence since, if it had existed, the bone had knitted fully. He said that the injury sustained was one normally associated with a fall where the hand was stretched out for protection. His opinion was that it would not have been caused by a blow nor by sustained twisting. If the latter had taken place he would have expected hand and finger movements to be stiff and painful which was not the case. In his opinion the likely cause of the injury was a jerk while the wrist was being held, more likely if there was an attempt to pull the hand away, and even more likely if at the same time the wrist was twisted. His opinion was that if the plaintiff had had to lean forward as suggested in his evidence that he would have done so to avoid pain in his shoulder and not in his hand. In his opinion there must have been a considerable degree of force involved to cause the injury complained of. No other medical evidence was adduced.

I am satisfied from the evidence that the plaintiff admitted that he had attempted to steal the potatoes, that he was kept in the shop until the guards arrived and that he was then arrested. He was lead out to the patrol car by the defendant guard who held his right wrist loosely in his left hand while pushing the go-cart with his right. The other guard followed with the two children and the manager bought up the rear. I accept the evidence of the two guards in this respect. I do not accept the evidence of the plaintiff. If he had had to bend forward it would have been to protect his shoulder, not his hand or wrist. Further, if his wrist had been twisted as he alleged then the nature of his injury would on the medical evidence have been different. Again he was unconvincing in his evidence and gave three separate versions as to how the guard held him while he was being walked out to the patrol car. I discount the manager’s evidence because he thought the party had left through a check-out aisle when it was clear from all the other witnesses that they had left by the entrance doors and also because he was clearly unable to recollect the details of the incident.

When the party reached the car there was some hiatus. It seems likely that the plaintiff thought that the two small children were going to be left behind and that he tried to refuse to get into the car. I think that there was more than just a sudden jerk by him but something of a scuffle. In a sense this is corroborated by Mr Rocca and also by the second guard when he said that the defendant Garda appeared to tighten his grip following the alleged jerk. It is in any event common case that the plaintiff was at some stage not prepared to enter the car unless the two small children also did so. I do not accept the version either of the plaintiff or of the two guards. The plaintiff must have done more than just turned his head as he was entering the car. Equally there must have been more than just one sudden jerk. Since the plaintiff was being held by the wrist then, so long as he was so held, his wrist would have come behind him as he entered the car provided the defendant Garda remained on the pavement. In my view this is what happened and it is the manager’s recollection of seeing this happen, coupled with the fact of the scuffle, which prompted his overall view that there was unnecessary roughness.

When the car reached the plaintiff’s home it is difficult to determine what actually happened. Both versions are improbable. The plaintiff’s mother is a very small woman and would have been unlikely to have been able to lean through the open window of the car. Equally it is unlikely that she would have been allowed actually to get into the car on her own with her son. Probably, she leaned in through the open door and gave her son more blows than she remembers. In any event the medical evidence does not support the suggestion that the injury was sustained by a blow from her.

It was also suggested that the injury might have been sustained by a blow from a hurley. If so, then it was sustained before the plaintiff set out to get the potatoes. This is highly unlikely. I am fully satisfied that he sustained the injury in the course of a scuffle induced by his belief that the children would be left behind. There was no substance in such belief because even if the defendant Garda had told them to go home the other Garda would not have permitted them to do so on their own.

I am satisfied that the plaintiff suffered no injury while being led from the back of the supermarket to the Garda car, nor was there anything improper in the manner in which that journey was conducted. The injury which he did suffer was sustained while he was entering the patrol car in the course of a scuffle with the defendant Garda. I take the view that the latter was aware that the plaintiff was concerned about his two young charges and that his efforts to resist being put into the patrol car were not in order to escape but to ensure that his two young charges would not be left on the street. The force used by the defendant Garda in those circumstances to ensure that he entered the patrol car was the cause of the plaintiff’s injury.

For the plaintiff to succeed, he must establish either that the act which caused the injury was not one done in the execution of the defendant Garda’s duty, or, if it was, that the degree of force used was unreasonable. The first question is to determine whether what was done was done in the execution of the defendant Garda’s duty. In Kemlin v Gardiner [1966] 3 All ER 931 the appellants had been convicted of assaulting the police in the execution of their duty. The police officers had taken hold of the appellants not to arrest them but to question them and the appellants had struggled in an effort to escape. The court held that as what the officers had done was not done as an integral step in the process of affecting an arrest but merely to hold the appellants for questioning there had been a technical assault. Their conviction was accordingly quashed since the police were not acting in the execution of their duty. This decision was followed in Pedro v Diss [1981] 2 All ER 59, where a similar decision was reached on similar facts.

In the present case, the defendant Garda was not acting in the course of his duty when the injury to the plaintiff was caused. An arresting officer is entitled to use such force as is reasonably necessary to effect an arrest. Once the arrest has been effected, then he is also entitled to use such force as is necessary to ensure that the arrest is maintained. The defendant Garda was doing neither of these things. He was acting neither to effect an arrest nor to maintain one, but to deny the plaintiff the right to concern himself with the welfare of his charges. He was not therefore acting in the execution of his duty and consequently the use of force by him was an unlawful act. That being so, the question as to whether or not the amount of force used was reasonable does not therefore arise. In any event, it would be difficult to find circumstances in which the use of such force as to cause the injury complained of could be found to be reasonable where, as here, the injury was to a young boy appearing to be between ten years and twelve-years and in the effective custody of two Garda officers.

The plaintiff is entitled to succeed. No doubt his struggles attributed to his injuries. Nevertheless the effective reason for these injuries was the denial by the defendant Garda of his right to concern himself with the welfare of his young charges. In my view, liability should not be apportioned. I accept the evidence of Mr De Vella as to the nature of the injuries sustained by the plaintiff. I propose to award him a sum of £3,500 and there will be judgment for that sum.

Dunne v. Clinton.

[1930] IR 366

SULLIVAN P. :
28 May

The plaintiff, John Dunne, is an electrician and collector in the employment of the Listowel Electric Light and Power Company. On Monday, January 28th, 1929, a sum of £84 odd, which he had collected on behalf of his employers, and which, according to his own account, he had left on the previous day in a press in the power station, was missing. He went to the Civic Guard Barracks in Listowel on the Monday, and gave a statement to the guards. He then returned to his work at the power station, and remained on duty until evening, when he returned home. In consequence of a message he received from a Civic Guard he went back to the barracks at about midnight. He was there questioned by the defendant and other officers of the guards, and, when the interrogation had ended, he was detained in the barracks. He remained in detention until 9 p.m. on the following Wednesday, when he was formally arrested, and charged with breaking into the power house and stealing £84, brought before a Peace Commissioner on that charge, and remanded on bail. On the 16th February he appeared before a District Justice to answer the charge, and the charge was dismissed.
The defendant took full responsibility for the detention of the plaintiff in the barracks. He satisfied the Circuit Judge that a felony had been committed, and that he had reasonable grounds for suspecting that the plaintiff was one of the parties guilty of the felony. He did not deny that he could have brought the plaintiff before a Peace Commissioner in Listowel on Tuesday, the 29th January, but he stated that the reason he did not do so was that the Listowel guards were engaged practically all the time from the Monday until the Wednesday evening in investigating the crime, and endeavouring to procure evidence. The Circuit Judge held that such reason afforded no justification in law for the delay in bringing the plaintiff before a Peace Commissioner, and he gave the plaintiff £2 damages for false imprisonment and trespass.
It is, in my opinion, hopeless to contend that the detention of the plaintiff did not amount in law to imprisonment; it was a total restraint of his liberty, imposed on him by the action of the guards against his will. That it was the duty of the defendant, as the officer responsible for such detention, to bring the plaintiff before a Peace Commissioner as soon as he reasonably could do so seems to me to be incontestable: see Wright
v. Court (1); R. (Rea) v. Davison (2). That he did not do so is clear on the admitted facts, and he is, therefore, liable to the plaintiff in damages. Such liability in damages is in respect only of the detention during the period that elapsed between the time when the defendant could reasonably have brought the plaintiff before a Peace Commissioner and the time when he in fact did so. The arrest of the plaintiff and his detention until he could be brought before a Peace Commissioner was lawful.”Throughout the entire of our constitutional law,” says Palles C.B. in Creagh v. Gamble (3), “I find in varied forms a recurrence of the principle which forms its fundamental basis, that a person against whom a reasonable suspicion of felony exists shall be brought to justice. The peace officer is not only entitled, but bound, to arrest him.”
That the defendant’s action in the present case was absolutelybona fide, that his sole motive was to bring felons to justice, and that he treated the plaintiff with all due consideration, is manifest, and was admitted before the Circuit Judge. Nevertheless, for the reasons I have stated, and to the extent I have stated, he is liable in damages to the plaintiff, John Dunne.
It is unnecessary to express any opinion on the question whether sect. 19 of the Courts of Justice Act, 1928, applies in the case of a person arrested on suspicion who has not been charged with any offence.
The appeal in this case must, therefore, be dismissed.
In William Dunne’s case the same considerations apply. The two cases were heard together, and I do not think the Circuit Judge should have dismissed William Dunne’s action at the close of his case on the ground that there was no evidence that the defendant was responsible for his detention. I think plaintiff’s counsel assumed from the attitude adopted by defendant’s counsel at the trial that the defendant was not denying the detention of the Dunnes, but was justifying it. The defendant’s counsel did not ask that William Dunne should be non-suited; the Judge acted on his own initiative, and declined to hear plaintiff’s counsel on the point. I am not at all satisfied that, as the evidence stood at the close of William Dunne’s case, there was no evidence against the defendant; but, however that may be, the defendant has very properly accepted full responsibility for the detention.
I am, therefore, of opinion that the dismiss in William Dunne’s case should be reversed, and he should be awarded £2 2s. damages.

HANNA J. :
This case involves an important question as to the limits of the powers of the Garda Siochana to detain persons reasonably suspected of having committed a felony. It is satisfactory to the Court to be able to decide it in a case in which it is admitted that in every way the guards acted with propriety and consideration towards the plaintiffs. The practice that was followed by the guards was stated to be a usual practice, and the Court was asked to determine on this appeal to what extent it could be supported in law.
The actions are brought, one by John Dunne, electrician, and the other by William Dunne, solicitor’s clerk, against Chief Superintendent Clinton, who is in charge of the Gárda Síothchána in County Kerry, for damages for false imprisonment under the following circumstances:On the night of Saturday, 26th January, 1929, a burglary was committed at the Listowel Electric Light and Power Company’s Works, and a considerable sum of money stolen. On Monday forenoon John Dunne went on request voluntarily to the barracks at Listowel and made a statement. Subsequently, when he arrived home that night at 8.30 he found the guards searching his house, and he and his brother, William Dunne, the other plaintiff, were interviewed by the local superintendent of the guards, and then, on request, the two Dunnes went voluntarily with the guards to the barracks at Listowel. They were there along with a man named Haig. They were further cross-examined separately as to matters relating to the burglary, and, at the termination of the examination, about 4.30 a.m. on Tuesday morning, they were detained in the barracks by the guards. The defendant, as chief officer in charge, now takes full responsibility for that action. There was uncontradicted evidence that a sergeant came into the room where the three men were and said, “You are detained.” There was also evidence, but contradicted by the defendant, that he said in answer to an inquiry of the sergeant, “Detention.” The men were not charged with any offence, nor were the usual formalities of arrest gone through. They were detained in the barracks until Wednesday night, the 30th January, 1929, when, in consequence of a letter of complaint written by their solicitor, they were brought before a Peace Commissioner, who remanded the accused on bail to the next District Court, which was held on the 16th February, when informations were refused.
Several Peace Commissioners were available in Listowel at any time on the Tuesday or Wednesday. The evidence of the defendant was that he detained the accused because he had a reasonable ground for believing that they had committed the felony, and that during the time they were detained he was busily engaged pursuing his investigations throughout the district, to see whether he could obtain sufficient evidence to charge the accused with the offence. It was further contended on the part of the defendant that, as a police officer, he was entitled to detain the plaintiffs for a reasonable time, during which he might have the opportunity of making inquiries, and investigating their connection with the crime, and that such detention did not amount to arrest or imprisonment, and was lawful. For the plaintiffs it was contended that once they were detained by the defendant because he had reasonable ground to suspect that the plaintiffs had committed the felony, it was the duty of the defendant or the guards to take the accused forthwith before a Peace Commissioner, to be dealt with according to lawthat is, to be remanded either in custody or on bail; and that the so-called “detention” placed them in custody, and their common law right was to have the question of their liberty decided by a Peace Commissioner.
The first question that arises is whether this detention is something different from arrest or imprisonment. In law there can be no half-way house between the liberty of the subject, unfettered by restraint, and an arrest. If a person under suspicion voluntarily agrees to go to a police station to be questioned, his liberty is not interfered with, as he can change his mind at any time. If, having been examined, he is asked, and voluntarily agrees, to remain in the barracks until some investigation is made, he is still a free subject, and can leave at any time. But a practice has grown up of “detention,” as distinct from arrest. It is, in effect, keeping a suspect in custody, perhaps under as comfortable circumstances as the barracks will permit, without making any definite charge against him, and with the intimation in some form of words or gesture that he is under restraint, and will not be allowed to leave. As, in my opinion, there could be no such thing as notional liberty, this so-called detention amounts to arrest, and the suspect has in law been arrested and in custody during the period of his detention. The expression “detention” has no justification in law in this connection, and the use of it has in a sense helped. to nurture the idea that it is something different from arrest, and that it relieves the guards from the obligation to have the question of the liberty of the suspected person determined by a Peace Commissioner or the Court. If the word “detention”were deleted from the police vocabulary and the word “arrest”substituted there would be a clearer understanding as to the obligations upon the guards. If it is necessary or advisable for the investigation of crime that there should be some intermediate period conforming to the present practice, it must be authorised by the Legislature. It is a deprivation of the liberty of the subject, and it is fundamental that that cannot occur in cases such as this, save by the order of a Peace Commissioner or a Court.
There is no reported case on this point in Ireland, but it was considered in the Court of Criminal Appeal on 9th April, 1929, in the case of Attorney-General v. Cox (1), before the Chief Justice, the President of the High Court, and myself. I have referred to my own note of the case and the decision. The accused had been convicted of murder, and at his trial certain statements made by him to the guards had been admitted in evidence. The admissibility of these statements depended on whether they were made at a time when the accused was in custody and under arrest. This question formed one of the grounds of appeal. The facts were very similar to the present case, and in pursuance of the same practice of the guards. A number of men, including the accused, had gone to the barracks at the request of the guards, voluntarily, and had been examined as to their movements and other matters relevant to the crime. The men, other than the accused, went away after they had made their statements, but the accused was detained, but not charged or formally arrested. There was a conflict as to whether the statement was made before or after he was detained. The Chief Justice, in giving the judgment of the Court, said: “The police contend that this man was only in detention, and not under arrest . . . There is no doubt that at some time on the night of the 22nd-23rd of December he was not a free man, and was detained, as the police say.” His Lordship then considered the evidence, and stated the view of the Court, that the statement was made before there was any detention, but added:”The Court cannot accept this distinction between detainer where a person is not a free agent, and arrest or imprisonment as it is commonly understood in law, and I am trying to avoid it.”
Accordingly the Dunnes were, in my opinion, arrested and in custody from 4.30 on the Tuesday morning. They were lawfully under arrest, because the guards had reasonable grounds for suspecting them to have committed the felony.
What then was the duty of the guards?
I must first consider whether the sections of the Courts of Justice Acts, 1924-1928, have any application. Sect. 88, sub-sect. 4, of the Courts of Justice Act, 1924, was the first section dealing with procedure on arrest. That has been repealed by sect. 19 of the Courts of Justice Act, 1928, which enacts that”whenever any person charged with having committed an offence is lawfully arrested, such person shall, unless the Justice of the District Court . . . . is immediately available, be brought before a Peace Commissioner, and such Peace Commissioner, after hearing such evidence as may be offered, shall remand such person either in custody or in such bail as he shall think fit, and remit the case for hearing before such Justice . . .” In my opinion, the section does not apply to the case before us, inasmuch as the plaintiffs were not charged with any offence, but had been arrested merely on suspicion. It is on this section that the guards act when the formal charge and arrest of the accused is made by them. The section, however, is of some importance as showing that even in a case of an actual charge immediate action is necessary to bring the person charged before a District Justice or a Peace Commissioner. As there is no other statutory provision in the legislation applying to the Saorstát, we must have regard to the Common Law.
It is, in my opinion, clearly the law that, once a person is detained by the guards, or, in other words, in custody of the guards, on suspicion of having committed a felony, it is the duty of the police officer arresting him to take him with reasonable expedition before a Peace Commissioner. He can be retained in custody only during such a time as is reasonable for that purpose. Any question of the time necessary to investigate the offence, or to obtain evidence upon which to found a charge, is quite irrelevant. It is for the Peace Commissioner and not the guard to determine whether the suspected person is to remain in custody or to be released on bail.
Many of the old cases have been cited to us, but it is not necessary to go further afield than the judgment of Mr. Justice Gibson in R. (Rea) v. Davison (1). The question in that case was as to the delay in the execution of a warrant, the suggestion being made that it was due to a desire to bring the accused before a particular magistrate. At p. 359 Gibson J. says:”No time was fixed for the execution of the warrant: ‘The law has fixed a time, for by law the officer is bound to carry immediately before the magistrate. If he delay any time, it is against the duty of office’: Parker C.J., in Reg. v. Derby (2). Powis J. in the same case said that where a warrant was to bring before a particular Justice, the officer might carry before another, if nearer. Unreasonable detention on the part of a constable or magistrate was actionable: Wright v. Court (3); Davis v. Capper (4) . . . . He [the officer] was not a prosecutor, but merely a ministerial functionary. The power of election is founded mainly on convenience, in order to enable the arrested person to be dealt with as expeditiously as possible, in his interest, and not to enable the constable to exercise a quasi right of challenge. What would Coke, whose report of Foster’s Case (5) is the primary authority on this point, have said to such pretension on the constable’s part in the days of Shakespeare? What would have been the opinion of Powis J. in such a case is certain from what he said: see Reg. v. Derby (2). The law is stated in Nun and Walsh, edition 1841, p. 185, as follows:’The choice is not to be capriciously made, or such as to put the prisoner to any unnecessary inconvenience. The officer therefore will not be justified in carrying the prisoner to a distance when there is a magistrate near at hand; it is his duty, unless there be some very sufficient reason for not doing so, to proceed to the next Justice.’ Wright v. Court (3), a case of arrest without warrant, is explicit as to the principle. The judgment is as follows:’ But it is the duty of a person arresting anyone on suspicion of felony to take him before a Justice as soon as he reasonably can, and the law gives no authority even to a Justice to detain a person suspected, but for a reasonable time till he may be examined.’ Where there was no warrant it was the duty of the arresting officer to take the prisoner with all convenient speed before some neighbouring Justice.”
The principle enunciated by Mr. Justice Gibson applies equally in the case of arrest under the common law of arrest on reasonable suspicion of having committed a felony, and clearly indicates immediate and convenient speed. Now, what is a reasonable time after arrest? No hard and fast rule can be laid down to cover every case. It must depend on many circumstances, such as the time and place of the arrest, the number of the accused, whether a Peace Commissioner is easily available, and such other matters as may be relevant. In some of the English statutes to which we were referred a specific number of hours is mentioned, but these do not apply to the Saorstát. The power of the police to release on bail given by sect. 22 of the Criminal Justice Administration Act, 1914 (sub-stituted for sect. 38 of the Summary Jurisdiction Act, 1879), is by sect. 43 excluded from application to Ireland. The plaintiff in this case could have been brought before a Peace Commissioner any time on Tuesday or Wednesday. Having regard to the law it was unreasonable delay, and therefore unlawful detention, to wait until Wednesday night. It is obvious that the guards thought that they had the right to detain the plaintiffs in pursuance of their practice, which, in my opinion, is unlawful, and would have further detained them but for the challenge of the plaintiffs’ solicitor.
I am of opinion that the Circuit Judge was right in his law, in his finding of fact, and in his assessment of damages; with the result that the appeal against the decision in John Dunne’s case should be dismissed, with costs.
As to the claim of William Dunne, the Circuit Judge dismissed his case, as he had given no evidence that Clinton was party to his detention. There are several answers to this: First, the point was not taken by the defendant’s counsel in the cross-examination of William Dunne. It was sprung upon counsel in the Judge’s ruling at the end of the plaintiff’s case, and he was not permitted to re-open or deal with the point in the course of the trial. It is evident that the two cases were heard together as one, just as they have been here, and the defendant through his counsel here has very properly taken the responsibility for both decisions, and seeks to have the matter of principle decided.
Accordingly, I think the order should be that William Dunne’s appeal be allowed, and his damages measured at £2 2s., with costs in the Court below, and that the appeal of the defendant against the decree in John Dunne’s case be dismissed, the two appeals to be treated as one, and one set of costs of appeal, to be allowed in John Dunne’s case, against the defendant.

Walsh v Pender

High Court.

17 May 1927

[1928] 62 I.L.T.R 8

Mr. Commissioner Lynch (delivering the judgment of the Commissioners).—It was the duty of the defendant to take the plaintiff before a District Justice or a Peace Commissioner as soon as possible after arrest, in order to have the complaints between the parties dealt with according to law. Having failed to comply with the provisions of the section, defendant left himself liable to an action for false imprisonment. The claim in respect of assault may be considered as one with the claim in respect of the imprisonment. The dismiss of Circuit Court Judge must be reversed. In lieu thereof, we give judgment for the plaintiff for £5, with costs and expenses, both of the appeal and of the hearing in the court below.

 

 

Philip J. Fox v Great Southern Railways

High Court On Circuit.

28 February 1940

[1941] 75 I.L.T.R 2
O’Byrne J.

O’Byrne, J., having reviewed the evidence at length, in the course of his judgment, said the first point he had to consider was whether or not there was in fact an arrest and imprisonment, that was a detention of the plaintiff by force. It was denied by the defendant company, and the evidence of the plaintiff on the one hand, and Conductor Power on the other, was quite irreconcilable. If the evidence of the plaintiff were true there was undoubtedly an arrest and imprisonment in the legal meaning of those terms His Lordship accepted as a truthful narrative of what occurred on that occasion the evidence given by the plaintiff, and, accepting that evidence, he was satisfied that Mr. Fox was detained by force against his will and that, accordingly, he was arrested and imprisoned.

His Lordship said the next question he had to consider was, whether or not the defendant company was liable for the result of the action of Conductor Power. It was not suggested that the defendants or their conductor had any legal power to adopt that course, and, accordingly, the question resolved itself into whether or not the company was responsible for the illegal action of its conductor. There was the fact that certain written instructions had been issued—instructions, as his Lordship understood it, from the defendant company, that fares should be paid. There were verbal instructions given by Butler, the Area Superintendent, to the inspector and some of the conductors Butler was not sure whether Power was one of the latter, but he certainly gave the instructions to Inspector Brosnan, who conveyed them again verbally to various conductors, including Power.

All these instructions were verbal, and there was no record of what they were. All the parties were relying on what their recollection was now after the difficulty had arisen, and when this action had been brought. That was the very unsatisfactory way in which the matter stood Numerous documents had been issued, and those various officers, including Power, were given copies of the regulations made by the Minister and a copy of various sections of the Road Traffic Act, 1933.

His Lordship said that it would be very difficult for a person in Power’s position to construe some of those sections. It was not by any means an easy matter for a trained lawyer to construe some of them, and one of the sections which Power had to construe and enforce was Sec. 126 (3) of the Act, which dealt with the pointing out to a Civic Guard of a passenger failing to pay his fare. That was one of the provisions which the conductor had to enforce in the interests of his company and for the purpose of seeing that fares were duly paid to his company. It seemed an extremely difficult sub-section to apply. It was very simple when a Guard happened to be standing beside a bus when it came to its terminus and the conductor was able to point out the pas *4 senger as he descended from the bus and walked away, but it was very difficult to see how it was to be enforced in a case such as this where there was no Guard in the vicinity. How was it to be done? That was one of the particular sections which was in controversy at the time the regulations were issued and it was the subject-matter of instructions from Butler to Brosnan and from Brosnan to Power. There was no record what these instructions were. But there was this: there was the attitude adopted by Power at the time, and the statements which he made at the time as an indication as to what instructions he had received. Mr. Fox, in the course of his evidence, stated various suggestions which he made to the conductor about calling at his house, etc., but the conductor invariably replied, “I am sorry I cannot adopt this course. I must take you and point you out.” And the Guard, who gave very material evidence in the case, said that when those two men came into the barracks he asked them what was their business and Power said: “This man refused to pay his fare on the bus from Waterford.” Mr. Fox thereupon said that he was the holder of a monthly ticket which was in force, and that he had offered the conductor his name and address. The Guard then said that he said to the conductor: “This man says he is a monthly ticket holder. Would not his name and address have done you?” and the conductor replied: “No,” and that his instructions were to point out and hand over a person refusing to pay his fare. Power, of course, denied all this. He denied that he ever used those words, but his Lordship stated he would come to the same conclusion altogether apart from the evidence of the Guard. He would find the same fact on the plaintiff’s evidence, but the Guard’s testimony had put it beyond all question. What happened immediately afterwards showed that that was what really occurred, because the Guard proceeded to deal with him as a person who had committed a criminal offence although presumably he knew Mr. Fox. Power’s instructions were to point him out and hand him over, and that was what he said at the time.

His Lordship dealt with the attitude taken up by Mr. Butler, Inspector Brosnan, and finally by the Railway Co., who replied to a letter written on March 13th by the plaintiff’s solicitor, referring him to the Road Traffic Act. Why did they refer him to that Act—obviously in answer to the plaintiff’s letter as the company’s authority for the arrest of the plaintiff. It was, of course, now admitted that the company had no authority, and it was only on April 19th, 1939, that they made the case that there was no foundation for the suggestion that plaintiff was detained against his will. But there was no suggestion from beginning to end of this correspondence that the conductor was not acting upon instructions.

His Lordship said that he had come to the conclusion that, in taking that course, Power was acting upon the instructions which he had received from Brosnan and through Brosnan from Butler, and that accordingly the company was responsible for this act.

His Lordship went on to say that he would have arrived at the same conclusion along a somewhat different route It was clearly intimated to Power that he was to enforce the regulations under the Act, which included Sec. 126 (3) of Road Traffic Act, 1933. That was a very difficult section to apply and construe, and if the very subordinate official, Power, was left in that position, without any definite or express instructions as to how he was to enforce it, and if he attempted to enforce it in that illegal manner by detaining the plaintiff against his will and bringing him to a Guard barracks under constraint, then he would have made a mistake, probably in the carrying out of his duty, a mistake induced by the failure of the defendant company to give him proper instructions, and the result would have been exactly the same.

His Lordship found that Power was acting upon instructions, and stated there was ample evidence for that in Power’s statement and conduct at the time; there was ample authority for it in the evidence and in the correspondence which took place.

His Lordship then said that the only question left was the amount of damages to be awarded. It was, of course, a serious matter for any person to be detained against his will, especially a man like Mr. Fox, who was wellknown in the town of Tramore. It was serious that he should be kept in the bus, driven through Tramore past his own door, and brought to the barracks and left there while a statement was being taken from him by a Guard on a criminal charge after a caution had been administered. In view of the fact that Mr. Fox must have been wellknown in the district it was a high-handed action. On the other hand, he did not suppose the damage to Mr. Fox was very serious and it seemed to him that the justice of the case would be met if he awarded damages in the sum of £20. It was clearly an action which the plaintiff was entitled to bring, and accordingly he awarded him full costs of both *5 Courts, and would give any necessary certificate for that purpose.

Gildea v. Hipwell.

Martin Maguire J.

[1942] IR  492

 

MARTIN MAGUIRE J. (after stating the plaintiff’s claim as indorsed on the Civil Bill and the defendant’s defence, both of which are printed ante) continued:
22 May

Notice of trial was served for trial of the action with a jury. The case came on for hearing on Monday the 19th May. At the conclusion of the plaintiff’s case, by consent of the parties, it was agreed that the jury should assess damages provisionally, the amount fixed by the jury to be accepted by the parties, the questions of law and the legal liability, if any, to be determined by me.
The defendant having been examined, counsel on behalf of the plaintiff and defendant addressed the jury on the subject of damages. I charged the jury. There was no objection to my charge. The jury assessed damages at the sum of £13 16s. 6d.
The case was fully argued by counsel on behalf of the plaintiff and defendant. The following facts were established: – 1941.

The plaintiff, who was born in County Leitrim, emigrated to the United States of America about 1912. About the year 1919 he purchased certain lands and a public-house, comprised in Folios Nos. 16543 and 10532, Land Registry of the County of Roscommon, for which he paid £1,950. In the same year he got married.
In 1926 he returned to Ireland and went to reside with his wife and family in his house on the said lands. In 1937 he found himself in financial difficulties, and on the 29th May, 1937, he brought a Petition for Arrangement in the High Court of Justice in Bankruptcy. He failed to carry this Arrangement and, on the 9th July, 1937, he was adjudicated a bankrupt. On the 13th May, 1938, an order for sale of the lands, the subject of the said Folios, was made pursuant to the course of the Court in this matter.
In February, 1939, the lands were sold to one, Vincent Casey, and the sale was confirmed by order of the Court, dated the 10th February, 1939. On the 29th October, 1938, an order for possession was made against the plaintiff. This order was executed on the 2nd December, 1938, and the plaintiff was put out of possession of the lands. The plaintiff unlawfully re-took possession of the lands, which were then the subject-matter of the pending sale. On the 15th May, 1939, he was examined in bankruptcy before Mr. Justice Hanna, sitting as Bankruptcy Judge.
On the 15th May, 1939, he gave an undertaking in Court to Mr. Justice Hanna to give up to the Court Auctioneer or his nominee on or before the 1st June, 1939, clear possession of the lands and premises, the subject-matter of the said Folios. He failed to carry out this undertaking. On the 7th July, 1939, by order of Mr. Justice Black it was adjudged that the plaintiff was guilty of contempt in that he failed to carry out the said undertaking, and it was ordered that the plaintiff be committed for the said contempt in custody of the Governor of Mountjoy Prison, in the City of Dublin, to be by him imprisoned unless or until he should be thence discharged in due course of law. Execution of this order was stayed for a week.
On the 24th July, 1939, an order was made in the High Court of Justice in Bankruptcy, addressed to the Commissioner and Officers and men of the Gárda Síochána and the Governor of the Gaol of Mountjoy in the City of Dublin, reciting said order, dated the 7th July, 1939, and directing the said Gárda Síochána to take the said James Gildea and to deliver him to the Governor or Keeper of  the prison, and directed the Governor or Keeper of the Mountjoy Prison to receive and safely to keep the said James Gildea in the said prison until such time as the Court should order.

Shortly after the date of the said order the plaintiff left the jurisdiction of the Court and went to England. He returned to Ireland about the 20th November, 1940. On the 4th December, 1940, he was arrested by the Gárda Síochána in pursuance of said order at Corlara, in the County of Roscommon, and on the same day he was brought to Sligo Prison and received there by the defendant, who was the Governor of the said prison. He was detained in the said prison from the 4th until the 19th December, when he was released pursuant to an order of Mr. Justice Gavan Duffy made on an application for an order ofhabeas corpus on his behalf (1). He was allowed the costs of the said application by Mr. Justice Gavan Duffy as between party and party. He incurred an additional sum of £13 11s. 6d., solicitor and client costs, which amount was taxed, and is an item of special damage in his claim for relief in this action.
At the time of his arrest he was residing with his wife and family at the house of a Mr. Doyle, adjoining the said lands. In his evidence before me he said “there is no one on the said premises now. There is stock on the lands. I have one cow on the lands. Mr. Doyle has three or four head of cattle there. There is no fence. The fences are all knocked down. Doyle is a friend of mine. He is no relation. The sale went off owing to my opposition but I never obstructed it.” In fact the sale to Mr. Casey had to be rescinded by order of the Court on the 27th October, 1939, by reason of the inability to hand over possession to the purchaser, brought about by the conduct of the plaintiff.
The detention of the plaintiff in Sligo Gaol from the 4th December, 1940, until the 19th December, 1940, is not disputed. The defendant justifies the said detention on the grounds set out in the defence as aforesaid. It is not disputed in this action that the orders of the 7th July, 1939, and 24th July, 1939, are valid orders of the High Court of Justice. Their validity has not been challenged. They were never appealed from.
The plaintiff submits:1, that these orders were directed to the Governor of Mountjoy Prison and were not valid or legal authority for the detention of the plaintiff in Sligo Prison; 2, that the said orders, being in the nature of writs of execution, should have been renewed within twelve months of date, and, that at the time of the execution of the order of the 24th July, 1939, in the absence of a renewal thereof, its force was spent.

Following the judgment of the Supreme Court in O’Conghaile v. Wallace and Others (1) it falls to be determined whether this action is maintainable and what damages (if any) are recoverable against the defendant, notwithstanding the fact that Mr. Justice Gavan Duffy has ordered the release of the plaintiff on the ground that his detention was illegal. Mr. Justice FitzGibbon at p. 559 says:”On the other hand, however, the fact that the plaintiff was released upon habeas corpus from an imprisonment thereby determined to have been illegal does not,per se, entitle him to recover even nominal damages for false imprisonment. It is an adjudication that the detention is not in accordance with law, but not that damages are necessarily recoverable against the individuals by whom the detention was authorised or effected.”
By order of the Lord Lieutenant and Governor of Ireland, dated the 9th December, 1919, and made pursuant to the Criminal Justice Administration Act, 1914, it is provided that: “where the arrest of a person for whose committal to prison a warrant has been issued takes place in any other county than that in which the warrant has been issued, such person may be committed to any one of the prisons to which he might have been committed if the warrant had been issued in the district where the arrest takes place, even though this prison may not be the prison named in the warrant.”
In the Second Schedule to the said Order the prison at Sligo is one of the prisons to which persons arrested in the County of Roscommon may be committed.
The defendant gave evidence at the trial. He is an officer of long experience in the prison service, careful and capable. Nothing to the contrary was alleged. Since the event complained of he has retired on pension, having reached the age limit in said service. Before he received the prisoner into custody he examined the said order of the 24th July, 1939, and, having ascertained the place of arrest, received him in the prison in the ordinary course of his duty. He acted with perfect bona fides in the said matter. It is not alleged or suggested that he acted otherwise or with any improper motive or malice against the plaintiff. The said Order of the 9th December, 1919, has never been challenged. It was not argued before me that it was ultra vires or void.

I hold that it was sufficient authority for the defendant to take the plaintiff into the said prison and to detain him there. I think that the defendant was bound to receive the plaintiff and to detain him under the said order of Mr. Justice Black. The Governor of a prison is protected in obeying a warrant of commitment, valid on the face of it, and an action for false imprisonment will not lie against him for the detention of a prisoner in pursuance of the terms of such warrant: Henderson v.Preston (1); O’Conghaile v. Wallace and Others (2). The said order of the 24th July, 1939, was, in my opinion, sufficient warrant for the defendant for the detention of the plaintiff. He was not put upon enquiry, and it is difficult to see how he could have enquired into the validity of said order when the plaintiff was presented to him for detention pursuant thereto by the officers of the Gárda Síochána on the 4th December, 1940.
The order of committal, dated 24th July, 1939, was not, in my opinion, in the nature of an order for attachment or a writ of execution, which required renewal under Or. XLII, r. 20, of the Rules of the Supreme Court, 1905. It was not a writ of execution within r. 8 of Or. XLII, nor does it come within r. 7 of that Order. I think rr. 10 to 15 inclusive of Or. XLII have no application to a committal order such as that of the 24th July, 1939. It was not a judgment in process of execution: D. v. A. & Co. (3).Under s. 38 of the Enforcement of Court Orders Act, 1926 (No. 18 of 1926), Court orders can only now be executed and arrests effected by the Gárda Síochána: In re Earle (4)per FitzGibbon J. at pp. 493-501.
Mr. FitzGerald-Kenney contends that the only power to make the order, dated 24th July, 1939, was under s. 72 of the Bankruptcy (Ir.) Amendment Act, 1872, which enabled the Judge to direct imprisonment in a “convenient prison” which “the Court thinks expedient.”
I am not satisfied that this order was made by virtue of that section. I think it was made by Mr. Justice Black by virtue of his powers as Judge of the High Court, to which Court the bankruptcy jurisdiction was transferred by the Supreme Court of Judicature (No. 2) (Ir.) Act, 1897, and by s. 17 of the Courts of Justice Act, 1924 (No. 10 of 1924). The order does not appear to have been made under the powers of committal in ss. 385 and 391 of the Irish Bankrupt and Insolvent Act, 1857. Even if the order was made under the powers of s. 72 of the Bankruptcy Amendment Act of 1872, that section is merely an enabling one, enabling the Judge to specify what he considers to be a convenient prison for the detention of the person who is to be detained.

Accordingly I hold that no damages are recoverable in this action against the defendant and that the plaintiff’s claim fails.
I give judgment for the defendant with the costs of the action, subject to the terms of the order transferring the action to this Court, that is, with Circuit Court costs.

The plaintiff appealed to the Supreme Court (1).
SULLIVAN C.J. :
26 Feb.

This is an appeal by the plaintiff from the judgment in favour of the defendant entered at the trial of this action. The appellant asks that the judgment be set aside and a new trial ordered, or, alternatively, that judgment be entered for him for the amount of damages provisionally assessed by the jury, on the ground that the learned Judge misdirected himself in law in holding that the imprisonment of the appellant by the respondent was lawful.

[1942]
1 I.R. Gildea v. Hipwell.
Sullivan C.J. 501
Supreme Court

The action, which was brought to recover damages for the false imprisonment of the appellant in Sligo Gaol, of which the respondent was then the Governor, was tried by Maguire J. with a jury. At the close of the evidence, by consent of both parties, the jury were asked to assess damages provisionally. They assessed damages at £13 16s. 6d. and were then discharged, and the question whether the imprisonment was lawful was left to the learned Judge to determine. He held that the imprisonment was lawful and gave judgment for the defendant with costs.
The material facts are few and simple, and they are not in controversy. The appellant was the registered owner of certain lands situate in the County Roscommon upon which he lived with his wife and family. On the 9th July, 1937, he was adjudicated a bankrupt in the High Court of Justice in Bankruptcy, and on the 13th May, 1938, an order was made for the sale of his lands. The lands were sold and the appellant was put out of possession. He re-took possession of the lands, but on the 15th May, 1939, on his examination before Hanna J. sitting in Bankruptcy he gave an undertaking that he would give up possession before the 1st June, 1939. He failed to do so, and on the 7th July, 1939, Black J. sitting in Bankruptcy made an order in the terms following:”The Court doth adjudge the said James Gildea guilty of contempt in that he failed to carry out his undertaking to give up possession of certain lands and premises as set out in said order [of 15th May, 1939], and it is accordingly ordered that the said James Gildea be committed for the said contempt in custody of the Governor of Mountjoy Prison, in the City of Dublin, to be by him imprisoned unless or until he shall be thence discharged in due course of law.”
Pursuant to that order a warrant under the seal of the High Court of Justice in Bankruptcy issued on the 24th July, 1939, in these terms:[Reads warrant printed antepp. 485, 486.]
On the day that warrant issued the appellant went to England and remained there until the 21st November, 1940, when he returned to Ireland. On the 4th December, 1940, he was arrested in Roscommon on that warrant by the Gárda Síochána, taken to Sligo Prison and there delivered to the respondent, at that time the Governor of the Prison. He was detained in that prison until the 19th December, 1940, when he was released in obedience to an order of Gavan Duffy J. made on an application for an order of habeas corpus.
On the 20th January, 1941, the appellant instituted the

[1942]
1 I.R. Gildea v. Hipwell.
Sullivan C.J. 502
Supreme Court
action, claiming £300 damages for false imprisonment in Sligo Prison during the period aforesaid.
In his defence the respondent denied that he had imprisoned the appellant and, in the alternative, he pleaded that the acts done by him were done in bona fide execution of his duty as Governor of Sligo Prison and in pursuance of the order of committal of the High Court of Justice in Bankruptcy, dated the 24th July, 1939, which was within the jurisdiction of that Court and was regular on its face; and he relied upon the provisions of the General Prisons (Ireland) Act, 1877, and the Criminal Justice Administration Act, 1914, and on the Rules and Regulations made thereunder and, in particular, on the Order made thereunder by the Lord Lieutenant, dated the 9th December, 1919.
At the trial, and in this Court, the validity of the order made by Black J. on the 7th July, 1939, and of the warrant issued thereunder on the 24th July, 1939, was not questioned. The jurisdiction to make such an order was conferred on the Court of Bankruptcy by s. 72 of the Bankruptcy (Ir.) Amendment Act, 1872, and, pursuant to the Courts of Justice Act, 1924, became exerciseable by a Judge of the High Court sitting in Bankruptcy. That section provides that where the Court commits any person to prison, the commitment may be to such convenient prison as the Court thinks expedient.
That the respondent detained the appellant in Sligo Prison was not controverted, and the onus of justifying such detention lay upon the respondent. It was contended on his behalf that, as the warrant of commitment was regular on its face, the respondent was protected in obeying it, and the case of Henderson v. Preston (1) was relied on as supporting that contention. That case decided that the Governor of a prison who has detained a prisoner in obedience to, and in pursuance of, the terms of a warrant regular on its face cannot be held liable for such detention in an action for false imprisonment. But in this case the warrant is directed to the Governor of Mountjoy Gaol and requires him to receive the appellant and to keep him in the said prison, and it is idle to contend that the respondent, the Governor of Sligo Prison, in receiving the appellant into Sligo Prison and in detaining him there was acting in obedience to that warrant and in pursuance of its terms. It follows that the decision in Henderson v.Preston (1) does not assist the respondent in this case.
The next argument advanced by Mr. Dixon was that,notwithstanding the terms of the warrant, the imprisonment of the appellant in Sligo Gaol was justified by the Criminal Justice Administration Act, 1914, and by the Order of the Lord Lieutenant, dated the 9th December, 1919.
The Criminal Justice Administration Act, 1914, s. 17, deals with the commitment and removal of prisoners. The provisions of that section are applicable to Ireland subject to the modifications mentioned in s. 43. As so modified, s. 17 provides:
(1) The Lord Lieutenant may from time to time by any general or special rule under the Prisons (Ireland) Acts, 1826 to 1907, appropriate, either wholly or partially, particular prisons within his jurisdiction to particular classes of prisoners:
(2) A prisoner sentenced to imprisonment or committed to prison on remand, or pending trial, or otherwise, may be lawfully confined in any prison to which the Prisons (Ireland) Acts, 1826 to 1907, apply:
(3) Prisoners shall be committed to such prisons as the Lord Lieutenant may from time to time direct, and may on the like direction be removed therefrom during the term of their imprisonment to any other prison.
Mr. Dixon contended that the imprisonment of which the appellant complains could be justified under the second provision, inasmuch as Sligo Prison is a prison to which the Acts mentioned in that provision apply. I am quite satisfied that it cannot. The object of that provision is, I think, reasonably clear if one considers ss. 36, 38 and 39 of the Prisons (Ireland) Act, 1877, for which the provisions of s. 17 of the Criminal Justice Administration Act, 1914, are, by that Act, substituted. Sect. 36 of the former Act empowered the Lord Lieutenant by rule to appoint in any county a prison or prisons in which prisoners might be confined before and during trial, and s. 38 conferred upon the Lord Lieutenant a similar power to appoint in any county a prison or prisons in which debtors and noncriminal prisoners might be confined during the period of their imprisonment, but each of these sections authorised the confinement in such prison of such persons only as might, if that Act had not passed, have been confined in a prison”situate within the area of such county.” Sect. 39 provided that the committal or imprisonment of a prisoner to or in a prison, if otherwise valid, should not be illegal by reason only that such prisoner ought, according to the law for the time being in force, to have been committed to or imprisoned in some other prison, but such prisoner should, on application made on his behalf to a Judge of the Superior Courts of Law in Dublin, be entitled to be removed to such other prison at the public expense. These sections recognised that the law prescribed the particular prison to which a prisoner should be committed and in which he should be confined.
It seems to me to be reasonably clear that the object and effect of s. 17 of the Criminal Justice Administration Act, 1914, was, inter alia, to alter the existing law in so far as it required that a prisoner should be confined in a prison situated within any particular county, and to enable the Lord Lieutenant to regulate such matters untrammelled by any previous legislation that so required. It follows that I cannot give to sub-s. 2 of that section the effect suggested by Mr. Dixon. I cannot hold that it operates to override a warrant in which a particular prison is named as the place of detention.
In exercise of the powers conferred upon him by sub-s. 3 of that section the Lord Lieutenant made an Order, dated the 9th December, 1919, and upon that Order was based the final argument advanced by counsel for the respondent.
That Order directs that from and after the 31st December, 1919, prisoners shall be committed as follows:
“Persons committed for trial at, or committed from, Assizes, Commissions, and Quarter Sessions, held in and for the counties and county boroughs named in the First Schedule attached hereto shall be committed to the prisons named in the said First Schedule opposite the names of such counties and county boroughs, respectively, as therein set forth;
Persons remanded or sentenced to imprisonment, by a magistrate or magistrates, at Petty Sessions or otherwise, or by a Divisional Justice of the Police District of Dublin Metropolis, from the counties and county boroughs mentioned in the Second Schedule attached hereto, shall, except where lawfully committed to a bridewell, be committed to the prisons named in the said Second Schedule opposite the names of such counties and county boroughs, respectively, as therein set forth;
Persons who may lawfully be committed to an ordinary prison in Ireland, and who are committed otherwise than as described in the foregoing paragraphs and in the First and Second Schedules referred to therein, shall be committed to the prisons named in the Third Schedule attached hereto, as therein set forth;
Provided that where the arrest of a person for whose committal to prison a warrant has been issued takes place in any other county than that in which the warrant has been issued, such person may be committed to any one of the prisons to which he might have been committed if the warrant had been issued in the district where the arrest takes place, even though this prison may not be the prison named in the warrant.”
In the First and Second Schedules attached to that Order the names of the several counties and county boroughs in Ireland are set forth, and opposite each name there appears the name of a prison. In the Third Schedule there are two lists, one containing the names of certain prisons for males and the other the names of certain prisons for females. Both Mountjoy Prison and Sligo Prison are mentioned in the list of prisons for males. The appellant is a person to whom the third paragraph of the Order applies, and as the warrant upon which he was arrested committed him to a prison mentioned in the Third Schedule the warrant is quite in conformity with the relevant provision of the Order.
But it is contended on behalf of the respondent that the detention of the appellant in Sligo Prison is authorised by the proviso in the Order. It is said that the appellant was arrested in the county “other than that in which the warrant has been issued,” and that he was then committed to a prison to which he might have been committed if the warrant had been issued in the district in which he was arrested. Admittedly, the appellant was arrested in Roscommon, and if a warrant had been issued in Roscommon it might have committed him to Sligo Prison in accordance with paragraph 2 of the Order and the Second Schedule thereto attached, but before the proviso can avail the respondent must establish: (1) that Roscommon is a county”other than that in which the warrant has been issued,”and (2) that the appellant was “committed” to Sligo Prison. I do not think that the warrant of the High Court in Bankruptcy can properly be said to have been issued in any particular county, and it will be observed that the warrant in this case does not profess to have been issued in any county. It follows that, in my opinion, the proviso does not apply in the case of a person who has been arrested on such a warrant. It is therefore unnecessary that I should decide whether the appellant was “committed”to Sligo Prison, within the meaning of the proviso, and I express no opinion upon that question.
I am, therefore, of opinion that the respondent has failed to justify the detention of the appellant in Sligo Prison. It follows that, in my opinion, the appeal should be allowed, the judgment entered for the defendant set aside, and judgment entered for the appellant. If the appellant desires a new trial on the issue of damages I think that he is entitled to it, and that the finding of the jury on that issue should be set aside and a new trial directed.

MURNAGHAN J. :
I agree with the judgment which has been delivered by the Chief Justice and with the reasons stated by him and cannot usefully add anything to what he has said.

MEREDITH J. :
I also agree and for the reasons stated by the Chief Justice.

GEOGHEGAN J. :
I agree.

O’BYRNE J. :
In view of the conclusion at which I have arrived, it is unnecessary for me to consider or determine many of the questions which were argued before us.
The plaintiff was, admittedly, arrested on the 4th day of December, 1940, and taken to Sligo Gaol where he was imprisoned by the defendant (the Governor of said Gaol) until he was released on the 19th day of December, 1940, in pursuance of the order of Mr. Justice Gavan Duffy (1).It seems to me that an onus is thereby cast upon the defendant to justify the detention as having been in accordance with law.
For such justification the defendant relies upon an order and warrant of committal, dated the 24th day of July, 1939, issued in pursuance of an order of Mr. Justice Black sitting in Bankruptcy. The warrant is directed to the Commissioner and officers of the Gárda Síochána, and it directs them to take the plaintiff and to deliver him to the Governor or Keeper of Mountjoy Gaol in the City of Dublin, and it further directs the said Governor or Keeper to receive the plaintiff and to keep him safely in said prison until further order of the said Court. Prima facie, this warrant does not authorise the defendant to take and keep the plaintiff in Sligo Gaol and, if the matter rested there, the imprisonment would, in my opinion, be clearly unjustifiable. The defendant, however, further relies upon an Order made by the Lord Lieutenant of Ireland on the 9th day of December, 1919, and it becomes necessary to examine this Order in detail.

The Order of the Lord Lieutenant is made under the Criminal Justice Administration Act, 1914. Sect. 17 of that Act, as applied to Ireland by s. 43, provides that the Lord Lieutenant may, from time to time, by any general or special rule under the Prison Acts, appropriate, either wholly or partially, particular prisons within his jurisdiction to particular classes of prisoners: the section further provides that prisoners shall be committed to such prisons as the Lord Lieutenant may from time to time direct.
Various prisons throughout the country are specified in the First, Second and Third Schedules to the said Order. The prisons mentioned in the First Schedule are appropriated to persons committed for trial at, or committed from, Assizes, Commissions and Quarter Sessions; whilst those mentioned in the Second Schedule are appropriated to persons remanded or sentenced to imprisonment by a magistrate or magistrates at Petty Sessions or otherwise, or by a Divisional Justice of the Police District of Dublin Metropolis: neither of these Schedules is applicable in the present case. The Order then proceeds as follows:
“Persons who may lawfully be committed to an ordinary prison in Ireland, and who are committed otherwise than as described in the foregoing paragraphs and in the First and Second Schedules referred to therein shall be committed to the prisons named in the Third Schedule attached hereto, as therein set forth.”
The Third Schedule specifies several prisons, including Mountjoy and Sligo.
So far it is clear that the Order does not justify the imprisonment in this case. The defendant, however, relies upon the proviso to the Order, which is in the following words, namely:
“Provided that where the arrest of a person for whose committal to prison a warrant has been issued takes place in any other county than that in which the warrant has been issued, such person may be committed to any one of the prisons to which he might have been committed if the warrant had been issued in the district where the arrest takes place, even though this prison may not be the prison named in the warrant.”
The case made on behalf of the defendant, as I understand it, is as follows. It is alleged that the warrant in this case was issued in Dublin; but that the arrest took place in Roscommon, and it is contended that if the warrant had been issued in Roscommon the plaintiff might have been committed to Sligo Gaol, and it is further contended that the plaintiff was, in fact, committed to Sligo Gaol by the said Order of the Lord Lieutenant. I see grave difficulties in accepting these contentions.
In the first place it will be noticed that the proviso draws a distinction between the county, in which the warrant is issued, and that in which the arrest takes place. I am not satisfied that this has any application to the third paragraph of the Order, the operation of which is not in any way dependent upon the area in which the order of committal is issued. A person coming within the third paragraph may properly be committed wherever the order may be issued, to any of the prisons named in the Third Schedule, and, in the circumstances, any further power, such as that contained in the proviso, is quite unnecessary. I am inclined to think that the proviso was intended to deal with persons committed under the first and second paragraphs of the Order. In the ease of such persons, where the arrest takes place in a county, other than that in which the warrant is issued, it is, or may be, necessary to rely upon the power contained in the proviso, in order to have them committed to the prison appropriate to the place of arrest.
There is, however, as it seems tome, a still greater difficulty in accepting the contention of the defendant. Under the proviso, where the necessary conditions have been complied with, the person “may be committed to any one of the prisons to which he might have been committed,”etc. What meaning should be attributed to the words”may be committed”? Mr. Dixon contends that, in this clause, the word “committed” means “lodged with”and that it does not contemplate or require the making of any order of committal by any Court. The word”committed” is used in many places throughout this Order and it is admitted that in every other place where it occurs it means committed by some Court or Tribunal. In the circumstances it should not, in my opinion, be given a different meaning in this clause unless an intention to use it in a different sense is clearly manifested. I am unable to say that such an intention is clearly shown in the present case. The meaning of the proviso is by no means clear. It may be that it was intended to effectuate some such object as that effected by the clause immediately following the proviso, which directs that where, owing to distance or the absence of facilities for conveyance, a prisoner cannot be directly conveyed to one or other of the prisons to which it is directed that he be committed, the Court may, in any such ease, by order endorsed on the warrant of committal, commit such prisoner in the first instance to the most convenient ordinary prison with a direction that he be transmitted from it to the prison named in the body of the warrant of committal.
The Order of the Lord Lieutenant seems to me to be concerned merely with the specification of the prisons to which persons may properly be committed by orders or warrants of committal issued by Courts, and it cannot, in my opinion, be relied upon for the purpose of varying the terms of a committal order made by a competent Court acting within the limits of the Order.
Sect. 72 of the Bankruptcy (Ir.) Amendment Act, 1872, provides that where the Court commits any person to prison, the commitment may be to such convenient prison as the Court thinks expedient. It is contended on behalf of the defendant that Mr. Justice Black, in making the order of committal in this case, was acting as a Judge of the High Court and that the foregoing section has no application. I do not think that this contention is well founded. It is quite true that the Court of Bankruptcy no longer exists and that its powers are now vested in and exercised by the High Court. It seems to me to be equally true that, in the proceedings leading up to and including the making of the committal order, Mr. Justice Black was exercising, and was entitled to exercise, all the powers formerly vested in the Bankruptcy Court, including the power conferred by the said section, and, having exercised such power by selecting Mountjoy Gaol, I am of opinion that it was not open to any executive officer to vary that order by lodging the plaintiff in Sligo Gaol.